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Cannabis Businesses Beware of the Growing Risk of Website Accessibility Litigation

By NicoleAaronson
Cannabis Businesses Beware of the Growing Risk of Website Accessibility Litigation
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Law 420 Website Accessibility LitigationEven though cannabis is illegal under federal law, cannabis businesses must abide by the same federal laws applicable to all companies throughout the United States. While there are many federal regulations to be mindful of, the Americans with Disabilities Act (ADA) warrants singling out due to the explosion of website accessibility lawsuits against members of the cannabis industry. Plaintiff’s attorneys are quickly recognizing how vulnerable cannabis businesses are when it comes to ADA compliance, especially website accessibility.

Signed in 1990, the ADA prohibits discrimination based on disability in “places of public accommodation.” 42 USC § 12182(a). Originally aimed towards physical access barriers (think stairs versus handicapped accessible ramps), this wave of lawsuits allege that: (1) private company websites qualify as places of public accommodation; and (2) websites with access barriers (e.g., websites that are not compatible with screen reading software) deny plaintiffs the right of equal access.

In most cases, the plaintiff has attempted to use screen-reading software to access the website and claims the website or mobile application is incompatible with the assistive technology used. See Guglielmo v. Charlotte’s Web, Inc. Other common claims include the lack of image alt-text, color contrast issues, and improperly labeled links. See Begg v. NC3 Systems (caliva.com). Thus, the plaintiff contends the business violated Title III of the ADA and is entitled to injunctive relief and attorneys’ fees. Where available, plaintiffs will include state law claims, such as California’s Unruh Civil Rights Act, which tacks on damages of up to $4,000 per violation.

THE RISE OF WEBSITE ACCESSIBILITY LITIGATION

In 2018, the number of federally-filed website accessibility cases skyrocketed to 2,285. In January 2021, a record 1108 cases were filed. Yet cannabis companies, preoccupied with licensing, regulatory compliance, and day-to-day management, might not have the resources to immediately allocate to extensive web accessibility measures. In the meantime, cannabis businesses would be wise to take the following steps to help prepare for and defend against ADA claims:

1.    Add a website accessibility statement or policy.

Adding this document to your website showcases the importance of accessibility to your organization and shows that you are working diligently to create a better experience for users with disabilities. This should include a feedback form that allows website users to notify you of accessibility issues on your website and contact information so users can request accessible versions of website materials.

2.    Ensure that your website’s Terms and Conditions include an arbitration requirement.

Serial plaintiffs are looking for a quick settlement and typically will not want to pay arbitration costs. To be enforceable, website users must consent to your terms and conditions before using your website, and they must be accessible.

3.    Require accessibility in contracts with web developers.

Discuss accessibility with website developers and terms and conditions to be included in initial contracts and renewals. Ideally, these contracts will detail the vendor’s responsibility to deliver a website or digital product that is accessible but also maintains accessibility through regular review and testing. Require indemnification and hold harmless clauses that cover claims under both the ADA and state accessibility laws related to claims by private litigants and regulatory agencies. Include compensatory, statutory, and punitive damages, along with the costs of remediating violations, pre-suit costs, and expert consultant and attorneys’ fees.

4.    Expand your current compliance department to cover digital accessibility.

Action items include adopting an ADA digital compliance accessibility policy, setting forth guidelines for third-party contractors, and/or retaining a consultant to perform company training or audits for accessibility remediation.

5.    Be wary of quick-fix plug-ins such as overlays and widgets.

Many cannabis businesses are looking for a quick and affordable remedy to address accessibility in response to this growing litigation trend. As a result, there has been an explosion of vendors and tools, such as overlays and widgets, that supposedly assist businesses with achieving ADA compliance. These applications sit between your website and assistive technology but do not modify the underlying website code. They are rarely legally sufficient and may even interfere with other web accessibility priorities.

6.    Finally, if you receive a pre-lawsuit demand letter, begin website remediation immediately (and call your lawyer!)

Before a plaintiff can bring a lawsuit, there must be an actual dispute that the court can resolve. Once you become aware that your company is the target of a potential ADA accessibility lawsuit, remediation could render the plaintiff’s claims moot.

Website accessibility requirements and the attorneys who make easy money enforcing them are not going anywhere. While the above tactics can help in the short term, cannabis businesses will best protect and serve themselves and their consumers in the long run by ensuring their websites and mobile applications are fully accessible.

 


 

This content is intended for general information only. It should not be construed as legal advice, nor does it create an attorney-client relationship between the author and any recipient. Readers are advised to consult with counsel before relying on this information. 

Nicole is a California cannabis lawyer and specializes in data privacy, cybersecurity, and labor and employment. Nicole works with licensed cannabis and hemp operators throughout the country to comply with their obligations under the law and to develop risk management best practices.

You can read more from this series HERE

 


 

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