by Kimberly Spriggs 7/15/2022 at 4:53PM

Cannabis companies understand the complexities of their business and their websites are no different. Under Title III of the ADA, Americans Disability Act, selling goods on a website that is not broadly accessible – is an invitation to be sued.

Accessibility requirements, serial lawsuits, and the lawyers who make easy money enforcing them are not going away, so the best defense remains clear: make your website and app accessible from the beginning, incorporating accessibility WCAG 2.1 standards from the get-go is cheaper than remediating. So, startups that embrace accessible design from the beginning can save money in the long-run.

Legal side of the cannabis industry ADA digital lawsuits

The Americans with Disabilities Act (ADA) was signed into law 32 years ago on July 26, 1990. The law prohibits discrimination based on disability. Businesses and organizations with public services or spaces must provide accommodations and equal access for people with disabilities – this includes website, mobile application, video content, or any digital asset that can be accessed by the internet, which under the ADA law are considered “public domains”. If they fail to comply with the ADA law, they can be held accountable in court for violating civil rights laws.

What does Title III of the ADA, Americans with Disability Act mean? Accessibility is mandatory for websites that affect interstate commerce and fit under 12 listed categories. These 12 categories include sales establishments, like retailers and dispensaries, as well as service establishments, such as any cannabis ancillary businesses, including:

• Packaging and Labeling Companies
• Delivery services
• Secure transport businesses
• Security companies
• Vape and other cannabis consumption devices
• E-commerce websites
• Testing labs
• Licensing and branding companies
• Marketing and design agencies
• Media networks
• Retail design firms
• Hydroponics
• Vertical agriculture
• Greenhouse systems
• Horticultural lighting companies
• Nutrient suppliers
• Extraction equipment
• Commercial kitchens
• Banking
• Payroll companies
• Compliance
• Point-of-Sale Systems
• Software and mobile application developers
• Accounting
• Real Estate

Ironically, the cannabis industry has embraced the disabled community, helping open up topics like PTSD for veterans, pain management, etc. yet disabilities have a broad understanding and interpretation in the digital world too and having a website that is easy to access for your customers really just comes down to one thing – it is the law. The right thing to think about is that it is also inclusion. So, does every cannabis website and app need to be accessible? Yes, they do.

Cannabis website lawsuits on the rise, or blazing…

Between 2017 and 2022, the rate of website (including mobile apps) non-compliance lawsuits has tripled. One consumer has filed lawsuits against more than 60 different businesses, several of which are cannabis or CBD companies, and all because they failed to comply with ADA regulations.

“ADA-based cases, where the subject of the claim was either a website, mobile application, or video content, reached a rate of over 10 per day in 2021 with over 4000 in total.” Thus, it is only a matter of time before the cannabis industry became the target of these suits and it appears that time is nigh.”  (Credit: Jason Taylor’s blog)

According to Greenspoon Marder, LLC; Serial plaintiffs (and plaintiffs’ counsel) are targeting one industry after the next with suits claiming company websites fail to comply with Title III of the Americans with Disabilities Acts’ requiring that these businesses provide public accommodations to those with disabilities.

Because websites have been deemed to be virtual public spaces, they must comply with ADA regulations as well. Cannabis and CBD businesses, especially those without brick-and-mortar locations, must take even greater precautions. The cannabis websites are the consumers’ only means of accessing services and purchasing products in many cases. Many have failed to provide this accessibility, and the industry has experienced a wave of lawsuits as a result.

Now, each state is different and how they deal with their ADA lawsuits. But one state seems to win the serial litigation award – California. California is one of the most ADA compliant states in the nation – yet it is also the most ADA litigious.  Since the enactment of the ADA in 1992, it is estimated that over 20,000 ADA lawsuits have been filed in California courts, and conservative estimates indicate that this litigation costs California businesses over $20 million each year. The number of serial lawsuits has been on the rise during the pandemic, and plaintiffs in California are not just suing in their back yard – they are suing all over the U.S. for ADA digital non-compliance.

61 million individuals in the U.S are living with some form of a disability

According to the CDC, approximately 61 million individuals in the U.S are living with some form of a disability. That’s about 25% of the population, who represent potential new and repeat customers, plus employees – who are all protected by the American Disabilities Act (ADA).

Improving digital accessibility for three groups: users with cognitive abilities or learning disabilities, users with low vision or no vision (blind users), and users with disabilities on mobile devices. For people with disabilities like dexterity and mobility issues, or people with visual impairments either low vision, partially sighted, or legally blind who need assistive technology like screen readers, and or people with dexterity issues who lack the range of motion to navigate a keyboard or mobile device have a hard time if the website is lacking access.

Example: for the visually impaired consumers they rely on screen-readers, which allow them to navigate the site and access content. These screen-readers can only function if the website has proper code and title elements that can be rendered into text. The World Wide Web Consortium (W3C) outlines website standards to properly accommodate for these users and WCAG 2.1 (WCAG 2.2 is updating Fall 2022) defines them in coding extrapolations in detail. If cannabis or CBD businesses fail to meet these standards and levels for their digital assets, for the blind or visually impaired, or people with disabilities like dexterity or mobility issues, these consumers have no means of accessing their products and services.

The cannabis space is another way they conduct business. Why not do the right thing and become accessible.

$13 trillion in annual disposable income is the spending power people of disability have in discretionary income, making the disability community the largest minority group to bring about retail inclusion changes.

2021-22, cannabis businesses ADA non-compliance lawsuits at a glance

These are just some of the more recent, and higher profile cannabis ADA non-compliance cases.

Another reason to consider digital ADA Compliance is the veteran market. Many veterans in recent years have come back with life-sustaining injuries and we all know in the cannabis industry – this is a niche market that the VA supports as a part of treatment plans. So, cannabis dispensaries will make physical accommodations and not digital accommodations? That’s like taking a picture of a wheelchair ramp and taping it on the door to the dispensary and calling it ADA compliant. Now that sounds like a slap in the face to someone with a disability, doesn’t it? Could you look a veteran in the eye and say you don’t care?

How to fix your cannabis digital asset and become ADA Compliant

Hiring companies like Accessiblü LLC or New Possibilities Group LLC who can do accessibility automation as well as hands-on remediation to manage the compliance issues and threats is the first step. Very few accessibility compliance businesses out there actually know how to remediate and keep your assets functioning and aesthetically pleasing the way you intended… this is an art. There are accessibility overlays that claim to help but these are causing more litigation down the line. Buyer beware! Website and mobile app beauty aside, the risk of a lawsuit is highly likely to happen since the cannabis industry is alleged to be profitable. We know that only a few MLOs and MSOs managing state, and inter-state cannabis commerce are making the big bucks. Can you afford to wait until you get a demand letter and pay fines? So. why tempt fate? It is not worth the attempt to save money—and make the excuse not to remediate, especially since many cannabis businesses have been sued multiple times in recent years.

Complying with website-access regulations is not easy. Additionally, updating an entire site to meet standards can cost thousands of dollars.

Creating a validated, accessibly compliant site will bring you customer loyalty

In the private sector, there have been great strides to make site easily accessible, like; Boeing, CIGNA, Cisco, Delta, to name a few have stepped up to include people being marginalized . How many times have cannabis businesses stepped up? Maybe it’s time the cannabis industry stood up and did the right thing, for the right reasons.

7 reasons to make cannabis digital assets ADA compliant

1. Cannabis and CBD brands build goodwill and a positive reputation within the disability community.  Businesses and organizations that demonstrate goodwill build upon their reputations within their local and professional disability communities, create brand awareness, and brand loyalty. This holds especially true for privately held small and medium sized businesses. More than just a symbolic gesture, it encourages a large group of new customers to shop online, potentially visit these establishments and expands the pool of potential employees to join the workforce. Showing that the organization cares about the needs of everyone also demonstrates a strong sense of character and social responsibility that transcends paid advertising.
2. Expands your appeal to a significant segment of the population. Showing a welcoming face to people with disabilities opens new pathways to a demographic which is well-accustomed to advocating for themselves. Providing unimpeded access to this audience will resonate quickly and increase the public visibility and popularity of any organization.
3. Inclusivity makes for better business. When people feel good about their surroundings and peers, they help create a better environment for work, on-line shopping, and other activities. By providing a website that is accessible and demonstrate inclusivity to everyone, a cannabis or CBD business can grow and expand in new and unique ways.
4. Levels the playing field. Facilities managed by larger corporations are invariably equipped with accessibility teams who work on their sites fulltime, however not in the cannabis space. Small and medium sized organizations that become digitally ADA compliant can become more competitive while offering a better environment for customers and employees alike. More sales!
5. Protects against legal action. Organizations that do not provide disabled individuals with appropriate website access to could be exposed to potential lawsuits.
6. Accessibility makes life easier for everyone. There are many people who benefit from digitally compliant and accessible sites, including:
   1. People recovering from an injury, disabled veterans, and the elderly.
   2. Elderly individuals with mobility limitations, and yes, we know that Baby Boomers are a big segment of the cannabis market.
   3. Customers with mobility, dexterity, hearing, and low-vision, or blind people.
   4. For a cannabis business, this is one of the fastest ways to make a good impression on clients and increase your loyalty base. People with disabilities are extremely loyal to brands that are inclusive, and they let their community know.
7. It’s the right thing to do. Not only is it the law, inclusion and accessibility is the right thing to do.