Under the CCPA, when is a discount for customers who let a business keep and use their data a lawful financial incentive rather than discrimination?

## The prohibition Under the CCPA as amended by the CPRA, Civil Code `1798.125(a)(1)` says a business shall not discriminate against a consumer **because the consumer exercised a right** under the title, including by: 1. **Denying** goods or services; 2. **Charging different prices or rates**, including through discounts or other benefits, or imposing penalties; 3. Providing a **different level or quality** of goods or services; 4. **Suggesting** that the consumer will get a different price, rate, level or quality; 5. **Retaliating** against an employee, job applicant or independent contractor for exercising their rights. 11 CCR 7080(a) states the test compactly: a price or service difference is discriminatory, and prohibited, if the business treats a consumer differently **because** the consumer exercised a right. ## The permission The statute then carves out lawful differences: - `1798.125(a)(2)` and `(b)(1)`: a different price, rate, level or quality is allowed if it is **reasonably related to the value provided to the business by the consumer's data**. - `1798.125(b)(1)`: a business may offer **financial incentives**, including payments to consumers as compensation, for the **collection**, **sale or sharing**, or **retention** of personal information. - `1798.125(a)(3)`: loyalty, rewards, premium features, discounts or club-card programmes are not prohibited if consistent with the title. ## The conditions on a financial incentive | Condition | Source | |---|---| | Notify consumers of the incentive | `1798.125(b)(2)`; notice content in 11 CCR 7016 | | Enrol only with **prior opt-in consent** that clearly describes the material terms | `1798.125(b)(3)` | | Consent is **revocable at any time** | `1798.125(b)(3)` | | After a refusal, wait **at least 12 months** before asking again (or as regulations prescribe) | `1798.125(b)(3)` | | No practices that are **unjust, unreasonable, coercive or usurious** | `1798.125(b)(4)` | | Difference **reasonably related to the value** of the consumer's data | `1798.125(b)(1)`; 11 CCR 7080(b) | ## Valuing the data The regulations make 'reasonably related' auditable. Under 11 CCR 7080(b), if a business **cannot calculate a good-faith estimate** of the value of the consumer's data, or **cannot show** that the difference is reasonably related to it, it **shall not offer** the difference. 11 CCR 7081(a) requires a **reasonable and good-faith method, used and documented**, considering one or more of: - the marginal, average or aggregate-per-consumer value to the business of the sale, collection or deletion of the data; - revenue, expenses or profit connected with the sale, collection or retention of personal information; - expenses of offering the incentive itself; - any other practical and reasonably reliable method used in good faith. Under 7081(b), the business may consider the value of the data of all natural persons in the United States, not only California consumers. ## Worked example A language-learning app offers 20 percent off its annual plan to users who opt in to letting it **retain** their lesson recordings to improve its speech models. - **Lawful shape:** a notice describing the programme; a separate opt-in with the material terms; the discount supported by a documented estimate of what the retained recordings are worth to the app; users can revoke at any time. - **Discriminatory shape:** users who ask for their recordings to be deleted lose not only the discount but also their progress history and badges, a service difference with no valuation behind it; or users are enrolled by default and must opt out. ## What is not discrimination - A denial of a request to delete, correct, know or opt out **for reasons the CCPA permits** is not discriminatory (11 CCR 7080(c)). - A difference that is the **direct result of complying with a state or federal law** is not discriminatory (7080(g)). - A reasonable fee for a manifestly unfounded or excessive request under `1798.145(h)(3)` is not a financial incentive (7080(f)). ## Why it is asked at senior level The question needs the statute and the regulations together: the statute permits value-related differences, and the regulations require the number and the method. A candidate should say who owns the valuation, where it is documented, and how the opt-in and revocation are recorded so that the programme can be shown to meet each condition.