ADA Website Litigation Reaches the Cannabis Industry

Advertising Law

For the past decade, plaintiffs’ lawyers have been trolling the Internet for websites that are incompatible with screen-reader technology used by blind people to navigate the web. Businesses that fall short are accused of violating the Americans with Disabilities Act (ADA) and various state laws. As this trend has gained steam, ADA lawyers have gone from industry to industry in locust-like fashion. Their most recent target? Cannabis websites.

Begg v. NC3 Systems, a putative class action that was recently filed in the U.S. District Court for the Northern District of California, is the latest example. The plaintiff, who is blind, complains that caliva.com—a prominent cannabis brand with heavy-hitter financial backers such as rap star Jay-Z—lacks alternative-text tags that describe website imagery as well as labels that guide users through various website “fields,” and that the site is laden with “broken” hyperlinks that present unique challenges for screen-reader users. The plaintiff notes that the website contains information regarding brick-and-mortar stores—an important element in jurisdictions, such as the Ninth Circuit, that premise online accessibility obligations on a site’s “nexus” to a physical place. The complaint seeks an injunction requiring implementation of accessibility measures and monitoring protocols and $4,000 in damages for every class member based on a provision in California’s Unruh Civil Rights Act that has made the state a popular jurisdiction for ADA plaintiffs.

Despite the absence of specific regulations for nongovernmental website accessibility, courts consistently rule for plaintiffs in these cases, citing generic accessibility provisions in the ADA that predate the Internet. And that is likely to be the case for these latest targets, should they contest liability. That the nascent cannabis industry consists largely of startups operating on a shoestring budget with very low profit margins in light of the heavy tax burden is of little import, as the expense of implementing accessibility measures is not a defense except in extreme circumstances.

Accessibility requirements and the lawyers who make easy money enforcing them are not going away, so the best defense remains the obvious one: Make your website and app accessible. And incorporating accessibility from the get-go is cheaper than retrofitting, so startups that embrace accessible design from the beginning can save money in the long run.

So what, exactly, is required? While there are no binding regulations, there is a de facto standard: the Website Content Accessibility Guidelines (WCAG) promulgated by the World Wide Web Consortium. Compliance with those guidelines will keep your online platform off the plaintiffs’ bar’s radar. How to make your platform accessible—and keep it accessible—will depend in part on the platform’s complexity and how often content and layout are changed. Simple testing tools can detect problems like the lack of alternative-text tags and broken links, but there are many other technical provisions in the WCAG that can render accessibility—especially for feature-laden sites and apps—a daunting challenge. So accessibility sometimes requires a larger commitment, which can include an audit by an accessibility professional and the development of web design protocols to follow, whenever a site is created or updated.

In the meantime, if you get sued or receive a demand letter, the first step is to contact counsel with experience in handling online accessibility litigation. You need to take the right steps up front, and experienced counsel can help realistically assess your options.

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