Does Your Company Website Comply With Title III of the ADA?

Is your website covered by the Americans with Disabilities Act? The short answer is: possibly. This area of the law continues to evolve, with differences from jurisdiction to jurisdiction based on the type of website. But make no mistake: lawsuits alleging lack of website accessibility are hot. The most common allegation is that the company website is inaccessible to visually-impaired customers, although some cases now involve mobile apps. Such customers often rely on screen-reader software like JAWS or NVDA to interact with and access a site’s content. If the website is not compatible with this or similar screen-reader technology, most visually-impaired customers will not be able to use the website.

Companies seeking to navigate these issues should start by addressing two basic questions: (1) Does your website engage in commercial activity for the benefit of the general public; and if so (2) Will the law treat your website as a public accommodation, or the service of a public accommodation? If your website sells goods or services directly to the public, or if it engages in sufficient commercial activity, it may be covered as a “sales” or “service” establishment under the ADA. If it is covered, many jurisdictions will require you to provide a website that is accessible to visually-impaired consumers and other individuals with disabilities, particularly if your website has a “nexus” to the goods or services sold out of a brick-and-mortar store.

Here are the basics of what you need to know to assess whether your website is covered and, if so, what you should do about it.

Addition of Heather Capell Bramble Strengthens Venable’s Consumer Products and Product Liability Practices

We don’t like to toot our own horn in blog posts too often, but the arrival of Heather Capell Bramble in Venable’s Washington, DC office was a development we thought worthy of some tooting and something important to all of you as well.

Heather joins Venable from the U.S. Consumer Product Safety Commission (CPSC), where she served as chief counsel and policy advisor to Commissioner Marietta Robinson. During her time at the CPSC, she was involved in a wide range of issues, including providing advice and counsel on all proposed consumer product regulations, and mandatory standards, as well as product recalls, Section 15(b) reporting, administrative litigation, and enforcement and settlement agreements.

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Dose of Relief for Healthcare Entities: Second Circuit Finds Hospital Had Sufficient Consent Under the TCPA

Flu shotSome people really do not like being told to get a flu shot and, in Latner v. Mount Sinai Health System, Inc., 2018 WL 265085 (2d Cir. amended decision Jan. 9, 2018), a man sued his hospital over it. Well, not exactly. Plaintiff Daniel Latner claimed that a text message sent by a third party telemarketer for Mt. Sinai Health System reminding him to get a flu shot violated his rights under the Telephone Consumer Protection Act (TCPA). Among other things, the TCPA allows individuals to file lawsuits and collect statutory damages for receiving autodialed text messages without the recipient’s prior express consent. Latner addressed the scope of consent required for a healthcare message made by a covered entity or its business associate, as those terms are defined by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

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Telemarketing by Charity Fundraisers Remains an FTC Enforcement Priority

The FTC’s Northwest Regional Office has, for decades, led federal law enforcement efforts to investigate and shut down alleged fraud in the charity fundraising industry (state attorneys general are even more active in this space, as we’ve noted in previous writings). While the Northwest Region was somewhat active in the 1990s and early 2000s, its appetite for policing fundraising telemarketers clearly received a boost from its collaboration with state regulators against several allegedly sham charities in 2015. Just last year, we reported that enforcement against perceived charitable fundraising fraud remained a top FTC priority. With the beginning of 2018 upon us, the trend continues.

On January 10, 2018, the FTC asked the Department of Justice to file a complaint against Ohio-based charity and political fundraiser InfoCision, Inc., alleging violations of the FTC’s Telemarketing Sales Rule (for a good primer on why the FTC may refer litigation to the DOJ when it alleges violations of the TSR or other FTC trade regulation rules, click here). According to the complaint, InfoCision misrepresented the purpose of calls it placed to consumers in some of its telemarketing campaigns. The DOJ alleges that InfoCision told consumers at the beginning of the call that the purpose of the call was not to ask for a donation; however, the company’s telemarketers would then ask consumers to mail or hand-deliver materials to family, friends, or neighbors, asking for money donations to InfoCision’s charity client. In some cases, according to the DOJ, telemarketers would also ask the call recipient to make a charitable donation in contradiction of the initial representation that the purpose of the call was not to seek such a donation.

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FCC Revives Its Own Native Advertising Rule: Sponsorship Identification

The FCC’s Sponsorship Identification Rule is a close, perhaps neglected cousin of the FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements, i.e., its Native Advertising Guide. Nevertheless, the FCC’s latest enforcement action demonstrates how failure to follow the rule can result in penalties far larger than any imposed to date by the FTC. It also hints at the possibility that a single ad can result in dual liability for advertisers and broadcasters.

The Sponsorship ID Rule is fairly straightforward: if a broadcast station charges or accepts (or is promised) any money, service, or other valuable consideration in exchange for airing a piece of programming, then the broadcaster must disclose – at the time of the broadcast: (1) that the programming is “sponsored,” “paid,” or “furnished,” and (2) the identity of the sponsor. The Rule contains additional disclosure requirements for political ads, as well as “beneficial owner”-type provisions that require disclosure of the true sponsor in interest, rather than the name of any agent or middleman used to furnish the payment. A corollary to the Sponsorship ID Rule imposes a similar burden on sponsors to disclose to broadcasters when they have provided money, services or other consideration in exchange for the broadcast. 47 U.S.C. § 508.

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The Joint (And Several Liability) is Jumpin’

We wrote previously that for payment processors the death of Operation Choke Point was greatly exaggerated.  We also noted that a prior challenge to the FTC’s ability to impose joint and several liability on an executive for his former employer’s actions had failed. A recent appellate victory for the FTC reinforces both these points.  In FTC v. Universal Processing Services, 11th Circuit affirmed the district court’s imposition of joint and several liability on a payment processor for substantially assisting the Telemarketing Sales Rule (TSR) violations of its merchants.

Simply put, the court’s ruling affirmed that a payment processor can be held responsible for the total volume of sales processed for a merchant when the processor’s conduct amounts and unfair or deceptive practice under the Federal Trade Commission Act (FTC Act).  A violation of the TSR constitutes a violation of the FTC Act, which allows for penalties including equitable monetary relief.

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FDA Harshes the Vibe of CBD Makers, Warns Them to Stop Making Drug Claims

While there are many questions surrounding the regulation of marijuana and related products, the FDA has made it clear where it stands on at least one issue.  For the third year in a row, the FDA has issued a rash of warning letters to the makers of products containing cannabidiol (“CBD”) for marketing unapproved new drugs. CBD is a non-psychoactive compound derived from marijuana, which we’ve heard is used by many to treat symptoms including pain, anxiety, depression and insomnia.[1] The FDA letters assert that each of the companies’ claims regarding their CBD products cause them to be considered drugs, because they purport to be intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease and/or because they are intended to affect the structure or any function of the body. Such claims are a trap for the unwary because a sloppy marketer can inadvertently cause a relatively innocuous product to be subject to strict regulation as a drug. In this case, however, even a novice would conclude that the companies’ claims were disease related:

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Sex, Golf, and the FTC

Opting OutWhat do golf and sex have in common? According to the old joke: They’re two things you don’t have to be good at to enjoy. Similarly, some men – ok, most men – tend to exaggerate their prowess at both. You can add one more common trait: The FTC scrutinizes online continuity offers for the accessories associated with both, as the FTC last week settled a case involving lingerie and we blogged previously about the FTC’s golf ball ROSCA case, which settled recently. One final note on the connectivity between golf and lingerie: Supermodel and actress Kelly Rohrbach appeared in lingerie on the AdoreMe site and played college golf.

On November 20th, the FTC filed suit in New York against an online seller of lingerie for violating the FTC Act and Section 5 of the Restore Online Shoppers’ Confidence Act (ROSCA). According to the complaint, AdoreMe generates most of its revenue from its “VIP members.” For $39.95 a month, VIP members receive discounted prices, but are not charged if they buy apparel within the first five days of each month or affirmatively click a button to skip that month. If a consumer forgets to click the button or buy something within the first five days, the amount becomes store credit that supposedly can be used at any time. However, according to the FTC, many consumers were surprised to learn that the store credit could not be used at any time. The FTC alleged that AdoreMe failed to disclose that if a consumer cancelled their VIP membership, their store credit would be forfeited. The FTC sought $1.3 million for the forfeited store credit.

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Venable Joins GALA

We are pleased to announce that Venable has been accepted as a member of GALA (Global Advertising Lawyers Alliance). GALA is an alliance of lawyers located throughout the world with particular expertise and experience in advertising, marketing and promotion law. (Click here to go to the GALA website.) Being a GALA member will help us better serve our many clients whose marketing efforts now span the globe. Firms participating in GALA represent nearly 100 countries ranging literally from A (Anguilla) to Z (Zimbabwe). While most countries have only one member firm, the United States, given the size of its economy, has three member firms. GALA members meet periodically around the globe. Next week members from the Americas will be meeting in Panama and our own Melissa Steinman and Amy Mudge will be among the featured speakers. Venable is honored to have been invited to participate in GALA and we look forward to discussing its many benefits further with our clients.

Global Advertising Lawyers Alliance

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