Marijuana

Why Cannabis Companies Should Care About Their Online Accessibility

Cannabis companies should understand that selling goods on a website that is not broadly accessible is an invitation to be sued.

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Over the past couple years, business buyer (B2B) commerce has evolved and shifted to e-commerce, forcing businesses to invest in their online presence, through the creation of websites and social media accounts, to promote their goods and facilitate online purchases.

But what business owners may ignore is the growing trend of federal class-action lawsuits alleging that these websites and point-of-sale systems violate Title III of the Americans with Disabilities Act (the ADA). The ADA requires all businesses to remove any obstacle that prevents disabled persons to access the company’s goods or services online and provides that a business may have discriminated against disabled persons when they construct and maintain “architectural, transportation, and communication barriers” that prevent disabled people from enjoying the business as any other person.

If a plaintiff prevails in these types of lawsuits, the defendant may be required to pay the plaintiff’s attorneys’ fees and costs, and incur the cost of redesigning its website or point-of-sale system to comply with the ADA. States, including California, have their own supplementary set of statutory law, which mirrors the ADA but also open the door to statutory damages.

To this date, many of these lawsuits have been brought by groups of visually impaired consumers claiming that the defendant’s website fails to accommodate their disability. And with the growing popularity of cannabis products, most of which are now online, the cannabis industry has become these plaintiffs’ next target.

Jay-Z’s company, NC3 Systems, doing business as Caliva, was sued this summer for “its failure to design, construct, maintain, and operate its website to be fully and equally accessible to and independently usable by [the p]laintiff and other blind or visually-impaired people.”

The class action alleged that the plaintiff tried to access www.caliva.com and “encountered multiple access barriers that denied him full and equal access to the facilities, goods and services” that Caliva offered to the public, including the ability to “learn about store locations and hours and contact information; make an online purchase, determine prices for and availability of certain products, and related goods and services available both online and in stores.”

Then, last week, Prospect Farms Hemp Sales LLC and Highline Wellness Inc., two New York-based CBD retailers, were each named in separate federal court complaints filed by a legally blind plaintiff. The complaints allege, in part, that:

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Plaintiff brings this civil rights action against Prospect Farms for their failure to design, construct, maintain, and operate their website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired persons. Defendant is denying blind and visually-impaired persons throughout the United States with equal access to the goods and services Prospect Farms provides to their non-disabled customers through http//:www.Prospectfarms.com (hereinafter “Prospectfarms.com” or “the website”). Defendants’ denial of full and equal access to its website, and therefore denial of its products and services offered, and in conjunction with its physical locations, is a violation of Plaintiff’s rights under the Americans with Disabilities Act (the “ADA”).

Specifically, the complaints assert that the companies’ websites “contain […] thousands of access barriers that make it difficult if not impossible for blind and visually-impaired customers to use the website.” In addition, the plaintiff argues that “[t]he blind have an even greater need than the sighted to shop and conduct transactions online due to the challenges faced in mobility.”

If these claims were to succeed, the defendants would be required to perform certain actions, such as having to incur the cost of redesigning their website or point-of-sale system to comply with the ADA but also pay the plaintiff’s attorneys’ fees and costs. All in all, these lawsuits can become very costly, very fast.

So, in light of this growing litigation trend and the rise of cannabis online sales, cannabis companies should understand that selling goods on a website that is not broadly accessible is an invitation to be sued. To mitigate this risk, cannabis companies should be proactive in ensuring compliance with the ADA by maintaining practices to ensure their systems are frequently updated. Moreover, any cannabis company that receives a demand letter or is served with an ADA-related complaint should take these allegations seriously and deal with them quickly to reduce their settlement or litigation fees and avoid negative media attention.

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Nathalie Bougenies chairs Harris Bricken‘s hemp CBD practice group and focuses her practice on health and wellness, in addition to corporate transactions and regulatory compliance. For the past three years, Nathalie has helped clients navigate the complex regulatory landscape of hemp products intended for human consumption and advises domestic and international clients on the sale, distribution, marketing, labeling, and importation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s “Marketplace.” She also authors a weekly column for “Above the Law” that features content on cannabis policy and regulation and is a regular contributor to her firm’s “Canna Law Blog.” For three consecutive years, Nathalie has been named Rising Star by Super Lawyers.

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