The regulations implementing the CCPA define a “financial incentive” as any “program, benefit or other offering, including payments to consumers, related to the collection, retention, or sale of personal information.”1 Some businesses have expressed confusion as to whether a marketing list (e.g., an email marketing list) might be considered a “financial incentive” to the extent that it is used to disseminate exclusive discounts or offers (i.e., offers that are only available to consumers that provide their contact information to join the mailing list). Specifically, an argument might be made that the retailer is offering something to the public (e.g., a discount) and the offer “relate[s] to” the collection of personal information. On the other hand, an argument could be made that while a business does collect personal information as part of establishing a mailing list, a reasonable consumer would not perceive a mailing list itself as a “program, benefit, or other offering,” but rather a common means of communication. Indeed, if the regulation were interpreted expansively to define a mailing list as a “program, benefit, or other offering,” the term would encompass a host of activities that have nothing to do with offering a consumer a financial benefit such as the collection of contact information to distribute news, alerts, and other forms of information. Applying the CCPA’s financial incentive requirements (which require that a business obtain opt-in consent to the material terms of the financial incentive) to the establishment of an email list may also raise a conflict with the CAN-SPAM Act which does not require that a business obtain opt-in consent to transmit commercial electronic messages and which purports to “supersede[] any statute, regulation, or rule of a State or political subdivision of a State that expressly regulate the use of electronic mail to send commercial messages . . . .”2
Although the California Attorney General was asked to clarify whether promotional offers or discounts do, or do not, fall under the definition of a financial incentive, the Attorney General declined the invitation.3
For more information and resources about the CCPA visit http://www.CCPA-info.com.
This article is part of a multi-part series published by BCLP to help companies understand and implement the General Data Protection Regulation, the California Consumer Privacy Act and other privacy statutes. You can find more information on the CCPA in BCLP’s California Consumer Privacy Act Practical Guide, and more information about the GDPR in the American Bar Association’s The EU GDPR: Answers to the Most Frequently Asked Questions.v
1. CCPA Reg. 999.301(j).
2. 15 U.S.C. 7707(b)(1). Note that the preemption clause in the CAN-SPAM Act does not apply to state laws that are not specific to electronic mail such as “State trespass, contract, or tort law.” 15 U.S.C. 7707(b)(2)(A).
3. FSOR Appendix C at 3 (Response 15).
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