The new California Consumer Privacy Act of 2018 (CCPA) will come into effect on January 1, 2020. By turning attention to the issue now, cannabis companies can ensure compliance with the new law without significant business disruption.
Are You Subject To The Law?
A California cannabis company should start by determining whether the requirements of the law will actually apply to it. The act applies to for-profit companies that
- have annual gross revenues in excess of $25,000,000; OR
- receive or sell/share the personal information of 50,000 or more California residents, households, or devices annually; OR
- derive at least 50 percent of their annual revenues from selling the personal information of California residents.
What Does The Act Require?
The CCPA provides consumers with four basic rights relating to their personal information:
- The Right to Know
At least two methods for a consumer to request that the company identify the personal information in its possession must be provided, including, at a minimum, a toll-free number and a link on the company web site. Such a request will need to be fulfilled by the company without charge and within 45 days after receipt of the request (with the possibility of additional time where reasonably necessary and requested).
- The Right to Opt Out
Companies that provide consumer personal information to third parties must enable consumers to “opt out” of having her/his information transferred. While the opt-out/opt-in requirements are different for consumers under 16, such requirements should not be relevant to cannabis companies who don’t knowingly permit consumers under 21 to utilize their sites/services. In short, though, companies may not sell personal information of consumers age 13 to 16 without express “opt-in,” and for consumers under age 13, the company may not sell her/his personal information without “opt-in” from the consumer’s parent or guardian.
- The Right to Control and Be Forgotten
As noted above, consumers must be able to request the deletion of their personal information. This latter right to be forgotten, however, is not a blanket right and has limitation. Personal information need not be deleted, even after a request for such deletion by a consumer, when the information is, among other things, required to comply with a legal obligation or applicable laws (e.g., age-verification laws).
Note that where a company has a need to hold personal information, it may only hold and use that data for that specific purpose. If, for example, the company needs to hold the data for evidence of verification or other state regulatory requirements, it may not be used to provide marketing materials to the consumer or any other purpose outside of storage for legal compliance.
- The Right to Exercise Privacy Rights Without Prejudice
Companies may not discriminate against consumers who exercise their rights under the CCPA. That is, a company may not deny customers services, provide different goods or services, or charge customers different prices depending on whether they opt-out or otherwise take advantage of their rights under the CCPA. That said, the law nonetheless permits loyalty programs and other financial incentives that benefit those who don’t opt out.
What To Do To Get Ready?
January is coming. At this time companies should be discussing the issues with stakeholders within the company, primarily those interested in collecting and using the information—the marketing department—and those that control the technical collection of data—the IT department. It is important that both stakeholders provide input and understand the issues as it is common for systems to collect information that, for example, marketers were not actually looking to collect.
Nate Garhart is special counsel at Farella Braun + Martel. He counsels clients on internet issues, online privacy policies, and customer communication compliance with current laws such as the European Union’s GDPR and the California Consumer Privacy Act. Mr. Garhart’s practice also focuses on maximizing the value of trademark and copyright properties. He can be reached at (415) 954-4425.
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