Next Trend In ADA Suits: Gift Cards

Advertising Law

Here’s the latest wave in Americans with Disabilities Act (ADA) lawsuits against retailers: demanding that gift cards contain braille.

Dozens of putative class actions were filed in New York in October accusing retailers that sell gift cards without braille of violating the ADA. The plaintiffs allege that visually impaired people cannot independently purchase the cards, distinguish one merchant’s gift cards from another, ascertain the dollar denomination or review other information printed on the card (such as the terms or restrictions of use). One of the lawsuits, against Krispy Kreme, alleges that 8 million people in America have visual impairments and the nationwide market for gift cards exceeds $400 billion, yet only one merchant, Starbucks, issues gift cards that contain braille. The lawsuits seek injunctive relief on behalf of a nationwide class, and damages under New York law for a New York subclass.

These lawsuits bear some similarity to the wave of ADA lawsuits claiming that websites and mobile apps must be accessible to visually impaired people. Those lawsuits mushroomed after the Department of Justice withdrew its proposed notice of rulemaking regarding online accessibility last year. The results have generally been favorable for the plaintiffs. For example, a federal court in Florida ruled that a supermarket chain can be liable under the ADA for operating an inaccessible site, and the U.S. Court of Appeals, Ninth Circuit recently reinstated a lawsuit accusing Domino’s Pizza of violating the ADA insofar as visually impaired customers could not order a pizza through the chain’s website or mobile app. The Supreme Court then declined an opportunity to weigh in, denying Domino’s petition for review.

Despite the superficial similarity, there are important differences that should make life difficult for the gift card plaintiffs. The complaints do not really concern “access” to a place of public accommodation but rather the ability to read an individual item of information. The ADA is not favorable for such claims. Retailers need not provide price tags or receipts in braille, nor must bookstores sell books in braille or restaurants furnish menus in braille. Gift cards do not seem all that different. Gift cards might also be viewed as a form of currency, but there are hurdles there as well. While the U.S. Treasury agreed in the settlement of a lawsuit under the federal Rehabilitation Act to explore ways to add tactile features (not necessarily Braille) to U.S. currency, that is a far cry from finding an obligation under the ADA for private businesses to add Braille to every gift card.

To read the complaint in Lopez v. Krispy Kreme Doughnut Corporation, click here.

Why it matters: The ADA’s requirement of providing “auxiliary aids and services” has traditionally applied to facilitate communications with persons with visual or aural impairments. That envelope has been pushed with lawsuits regarding online accessibility—and with claims involving information on prescription bottles (which, for obvious reasons, implicate important safety considerations)—but this new wave of lawsuits seeks to push the envelope much further by equating communication with what is, in effect, the ability to read a product label.