In The Winery

with motor skill impairments or those who cannot use a mouse or see a mouse pointer on the screen. Make sure all interactive elements can be accessed using the tab, enter, spacebar, or arrow keys. Use a “Skip to Main Content” link to ensure that users employing only a keyboard can easily navigate the website’s primary content.

To implement these features, beverage companies should discuss accessibility concerns upfront with the web developer. Beverage companies should keep in mind that posting a phone number on a website to call for assistance, as commonly utilized by businesses, does not sufficiently provide equal access to the website and the services or goods provided.

Private lawsuits under the ADA can result in injunctive relief (a court order to comply with the ADA) and attorney fees. And in some states, like California, the state law version of the ADA may enable plaintiffs to demand monetary damages ($4,000 per violation of the ADA).

Government involvement, while less frequent, is possible in cases involving national retailers. If the Department of Justice observes a pattern or practice of discrimination, the Department will attempt to negotiate a settlement, and may bring suit on behalf of the United States. At stake are fines of up to $75,000 for the first ADA violation, and up to $150,000 for each subsequent violation.

What are the Rules for Website Accessibility?

Although the ADA itself does not spell out the rules for website accessibility, several sources provide detailed rules that can aid beverage companies in building accessible websites.

First, the ADA authorizes the Department of Justice to enforce the statute. Accordingly, the Department develops and issues regulations explaining how businesses must comply. Specifically, § 36.303 of the Electronic Code of Federal Regulations specifies that a public accommodation shall provide auxiliary aids and services when necessary to ensure effective communication with people with disabilities, and that a public accommodation should consult with people with disabilities whenever possible. The Department also issues administrative guidance, such as its March 2022 guidance described above.

Who can Sue Beverage Companies?

Non-compliance with ADA standards can lead to potential lawsuits. Although some courts have held that a nexus must exist between a private plaintiff’s disability and the web accessibility barrier claimed, a private plaintiff may easily surf the web for websites that are inaccessible. A private plaintiff may then file a lawsuit in federal court without first notifying the business. Further, liability under the ADA is strict, which means that the intent of the business to comply is immaterial. Thus, it is prudent for beverage companies to proactively address accessibility issues to avoid potential legal troubles.

Second, Section 508 of the Rehabilitation Act of 1973, which requires federal agencies to make their electronic and information technology accessible to people with disabilities, provides detailed guidance concerning the display screen ratios, status indicators, audio signals, and other accessibility features.

Third, the Web Content Accessibility Guidelines 2.1 (WCAG 2.1), which were originally designed by a consortium of four universities, provide highly specific web accessibility guidelines grounded on the idea that information on the web must be perceivable, operable, understandable, and robust. These guidelines are widely referenced in court cases and settlements with the Department of

Justice, as the guidelines address numerous aspects of web accessibility and offer three different levels of conformance (A, AA, AAA). Beverage companies can consult the WCAG 2.1 guidelines (including a customizable quick reference guide, at https:// www.w3.org/WAI/WCAG21/quickref/) to ensure their websites meet ADA compliance.

Looking Ahead

Web accessibility standards evolve over time, with updates being released periodically. Beverage companies should stay informed about changes and updates to ADA compliance regulations. For example, the WCAG 3.0 is scheduled for release in the latter half of 2023, further refining accessibility guidelines.

In sum, by understanding and identifying web accessibility barriers, and implementing necessary accessibility features, beverage companies can enhance user experiences and minimize the risk of legal repercussions. Embracing web accessibility is not only legally required but economically prudent in the long run, as it enables beverage companies to cater to a broad and varied audience, and demonstrates a commitment to inclusivity in the digital realm.

Vanessa Ing is a litigation associate with Farella Braun + Martel and can be reached at ving@fbm. com. Farella is a Northern California law firm representing corporate and private clients in sophisticated business and real estate transactions and complex commercial, civil and criminal litigation. The firm is headquartered in San Francisco with an office in the Napa Valley that is focused on the wine industry.