A California appeals court recently held that a retailer does not violate California privacy law by collecting and recording birth dates of consumers who buy alcohol with credit cards.
Plaintiff Mark Lewis purchased alcohol at a Safeway store in California. During the sales transaction, the clerk requested proof of Mr. Lewis’s age and then entered Mr. Lewis’s date of birth into the computerized cash register.
Mr. Lewis filed a putative class action alleging that Safeway’s actions violated the California Song-Beverly Credit Card Act. Lewis v. Safeway, Inc., 235 Cal. App. 4th 385 (Cal. Ct. App. 2015). The Song-Beverly Act prohibits retailers from requiring a consumer to provide personal information as a condition to payment by credit card and recording that information during the credit card transaction. Cal. Civ. Code § 1747.08(a)(2). Mr. Lewis claimed that although Safeway was required to verify his age before selling him alcohol, there is no legal requirement that Safeway record his birth date.
The California Court of Appeal affirmed the trial court’s dismissal of Mr. Lewis’s suit. The court found that Safeway is required by California’s Alcohol Beverage Control Act (“ABCA”) to verify the age of consumers purchasing alcohol and to keep records of its sales of alcoholic beverages, and thus, Safeway’s conduct fell within an exemption to the Song-Beverly Act for an obligation imposed by law.
The court reasoned that “[a] purchaser’s date of birth is . . . clearly fundamental to the transaction,” and keeping detailed sales records would help Safeway document its compliance with the ABCA. Lewis’s interpretation would “read into the ABCA a limitation that the Legislature itself, in enacting the ABCA, chose not to impose” and interfere with the state’s regulation of alcohol sales. Finally, Lewis’s interpretation would lead to the “absurd result” of allowing retailers to record birth dates of consumers paying with cash but not those paying with credit cards.
The court also held that Safeway was protected under another exemption to the law for when personal information “is required for a special purpose incidental but related to” the credit card transaction. The court found that proof of age is “a special purpose incidental but related to” the purchase of alcohol.
Retailers must tread carefully in requesting personal information from consumers during credit card sales. Nonetheless, retailers facing potential liability should evaluate whether their conduct may be protected by one of the law’s exemptions, particularly where requesting and recording personal information may be necessary to document compliance with other legal requirements.