Today, the California Attorney General announced the first settlement agreement under the California Consumer Privacy Act (“CCPA”).  The Attorney General alleged that online retailer Sephora, Inc. failed to disclose to consumers that it was selling their information and failed to process user requests to opt out of sale via user-enabled global privacy controls.  The Attorney General also alleged that Sephora did not cure these violations within the cure period. 

The meaning of the CCPA’s “sale” definition has been controversial and unclear. The CCPA statute defines the term to require an exchange of personal information for “monetary or other valuable consideration.”  The Attorney General previously declined to clarify whether the term covered various advertising practices in its earlier rulemakings, and the CPRA voted on by the California electorate clarifies that “sales” are distinct from “cross-context behavioral advertising.”  However, the Attorney General’s complaint suggests that Sephora’s relationships with certain ad tech partners met the definition of “sale” “because “Sephora gave companies access to consumer personal information in exchange for free or discounted analytics and advertising benefits. . . . Both the trade of personal information for analytics and the trade of personal information for an advertising option constituted sales under the CCPA.”  However, the complaint also acknowledges that maintaining a valid service provider contract with a vendor is an exception to the “sale” definition.

The complaint also reveals that, in June, the Attorney General conducted “an enforcement sweep of large retailers to determine whether they continued to sell personal information when a consumer signaled an opt-out via the GPC.”  The Attorney General’s press release on the settlement suggests that “businesses must treat opt-out requests made by user-enabled global privacy controls the same as requests made by users who have clicked the ‘Do Not Sell My Personal Information’ link.”  Without recognizing open questions about the GPC and its status under the CPRA, the press release also states, “Technologies like the Global Privacy Control are a game changer for consumers looking to exercise their data privacy rights [and businesses must] process opt-out requests made via user-enabled global privacy controls.”

The settlement requires Sephora to pay $1.2 million in penalties and comply with injunctive terms, including adding a representation that it sells data in its online disclosures and privacy policy, creating mechanisms for consumers to opt out of sale (including via the GPC), editing its service provider agreements to conform with CCPA requirements, and providing reporting to the Attorney General on its compliance with these requirements.

In addition to announcing the Sephora settlement today, the Attorney General also sent notices to a number of businesses alleging non-compliance related to a failure to process consumer opt-out requests made via user-enabled global privacy controls.  The Attorney General also released additional enforcement case examples, including an enforcement sweep of loyalty programs and allegations of noncompliance due to confusing or non-functional CCPA request mechanisms.

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Photo of Sarah Parker Sarah Parker

Sarah Parker is an associate in the firm’s Washington Office. Her practice focuses on privacy, advertising, and consumer protection regulatory matters and government investigations.

Sarah also maintains an active pro bono practice, with a focus on criminal justice and civil rights litigation.

Photo of Lindsey Tonsager Lindsey Tonsager

Lindsey Tonsager co-chairs the firm’s global Data Privacy and Cybersecurity practice. She advises clients in their strategic and proactive engagement with the Federal Trade Commission, the U.S. Congress, the California Privacy Protection Agency, and state attorneys general on proposed changes to data protection…

Lindsey Tonsager co-chairs the firm’s global Data Privacy and Cybersecurity practice. She advises clients in their strategic and proactive engagement with the Federal Trade Commission, the U.S. Congress, the California Privacy Protection Agency, and state attorneys general on proposed changes to data protection laws, and regularly represents clients in responding to investigations and enforcement actions involving their privacy and information security practices.

Lindsey’s practice focuses on helping clients launch new products and services that implicate the laws governing the use of artificial intelligence, data processing for connected devices, biometrics, online advertising, endorsements and testimonials in advertising and social media, the collection of personal information from children and students online, e-mail marketing, disclosures of video viewing information, and new technologies.

Lindsey also assesses privacy and data security risks in complex corporate transactions where personal data is a critical asset or data processing risks are otherwise material. In light of a dynamic regulatory environment where new state, federal, and international data protection laws are always on the horizon and enforcement priorities are shifting, she focuses on designing risk-based, global privacy programs for clients that can keep pace with evolving legal requirements and efficiently leverage the clients’ existing privacy policies and practices. She conducts data protection assessments to benchmark against legal requirements and industry trends and proposes practical risk mitigation measures.

Photo of Libbie Canter Libbie Canter

Libbie Canter represents a wide variety of multinational companies on privacy, cyber security, and technology transaction issues, including helping clients with their most complex privacy challenges and the development of governance frameworks and processes to comply with global privacy laws. She routinely supports…

Libbie Canter represents a wide variety of multinational companies on privacy, cyber security, and technology transaction issues, including helping clients with their most complex privacy challenges and the development of governance frameworks and processes to comply with global privacy laws. She routinely supports clients on their efforts to launch new products and services involving emerging technologies, and she has assisted dozens of clients with their efforts to prepare for and comply with federal and state privacy laws, including the California Consumer Privacy Act and California Privacy Rights Act.

Libbie represents clients across industries, but she also has deep expertise in advising clients in highly-regulated sectors, including financial services and digital health companies. She counsels these companies — and their technology and advertising partners — on how to address legacy regulatory issues and the cutting edge issues that have emerged with industry innovations and data collaborations.

As part of her practice, she also regularly represents clients in strategic transactions involving personal data and cybersecurity risk. She advises companies from all sectors on compliance with laws governing the handling of health-related data. Libbie is recognized as an Up and Coming lawyer in Chambers USA, Privacy & Data Security: Healthcare. Chambers USA notes, Libbie is “incredibly sharp and really thorough. She can do the nitty-gritty, in-the-weeds legal work incredibly well but she also can think of a bigger-picture business context and help to think through practical solutions.”

Photo of Jayne Ponder Jayne Ponder

Jayne Ponder provides strategic advice to national and multinational companies across industries on existing and emerging data privacy, cybersecurity, and artificial intelligence laws and regulations.

Jayne’s practice focuses on helping clients launch and improve products and services that involve laws governing data privacy…

Jayne Ponder provides strategic advice to national and multinational companies across industries on existing and emerging data privacy, cybersecurity, and artificial intelligence laws and regulations.

Jayne’s practice focuses on helping clients launch and improve products and services that involve laws governing data privacy, artificial intelligence, sensitive data and biometrics, marketing and online advertising, connected devices, and social media. For example, Jayne regularly advises clients on the California Consumer Privacy Act, Colorado AI Act, and the developing patchwork of U.S. state data privacy and artificial intelligence laws. She advises clients on drafting consumer notices, designing consent flows and consumer choices, drafting and negotiating commercial terms, building consumer rights processes, and undertaking data protection impact assessments. In addition, she routinely partners with clients on the development of risk-based privacy and artificial intelligence governance programs that reflect the dynamic regulatory environment and incorporate practical mitigation measures.

Jayne routinely represents clients in enforcement actions brought by the Federal Trade Commission and state attorneys general, particularly in areas related to data privacy, artificial intelligence, advertising, and cybersecurity. Additionally, she helps clients to advance advocacy in rulemaking processes led by federal and state regulators on data privacy, cybersecurity, and artificial intelligence topics.

As part of her practice, Jayne also advises companies on cybersecurity incident preparedness and response, including by drafting, revising, and testing incident response plans, conducting cybersecurity gap assessments, engaging vendors, and analyzing obligations under breach notification laws following an incident.

Jayne maintains an active pro bono practice, including assisting small and nonprofit entities with data privacy topics and elder estate planning.