Talking Shop September 2019

This newsletter focuses on key news and updates for retail and consumer-facing businesses around the world.

At the end of the newsletter, you can also find details of our upcoming events and recent news, which we think might be of interest to you and your team. One of our most exciting upcoming events is the Retail & Consumer Annual Update, which takes place in our London office on 9 October. The programme will feature a range of commercial and legal topics impacting all parts of the sector across the supply chain, as well as a chance to network with peers and meet the brands participating in our exhibitor showcase - many of whom will be providing demos and samples of their products. Please click here to find out more and register for the event.

Please get in touch, or visit our webpage for more information about Bird & Bird's Retail & Consumer Group.

• Brexit
• Competition & Consumer Law
• Data Protection
• Employment
• Franchising
• Influencer Marketing
• Regulatory
• News & Events

Brexit

As part of the Government's efforts to help businesses prepare for the possibility of the UK exiting the European Union without a deal on 31st October 2019 it has recently published a paper entitled Consumer rights and businesses: changes after Brexit. The paper confirms that, in the event of a 'no deal' exit, UK-based businesses and consumers will no longer have access to the European Commission's Online Dispute Resolution (ODR) platform.

Read more >

Will your .eu domain name be revoked after Brexit?

In our April 2018 newsletter, we shared the news that .eu domain names will no longer be available for UK residents and entities post-Brexit. Since then Brexit has been postponed twice, but the new date is fast-approaching. In case of no deal, as of 31 October 2019 over 300,000 .eu domain names will potentially be affected. This article updates you on what happened since April and what steps to take next.

Competition & Consumer Law

Customer loyalty schemes: have you earned the right to your customers' data?

A draft report posted on the ACCC's website earlier this month highlights a number of issues around customer loyalty schemes including concerns that companies touting these schemes are using them primarily as a portal to gain consumer data and insights as opposed to rewarding their consumers' allegiance.

The draft report released by the ACCC on 5 September 2019, available here, follows a review of customer loyalty schemes available in Australia – schemes which are particularly prevalent in the airline, supermarket, credit card, hotel and rental car industries.

A few more helpful hints from the CJEU on the indication of country of origin

The Court of Justice held in a judgement of 4 September 2019 in case C-686/17 that where customs regulations require a specific indication of the country of origin to be provided for placing a product on the market, that indication as such cannot be regarded as misleading consumers. In such cases, no obligations may be imposed on the producers to provide additional information regarding the indication of the country of origin in order to prevent any alleged risk of misleading of consumers per the rules on the provision of food information to consumers.

Has the latest cookie guidance from the UK Data Protection Authority left you puzzled?

On 3 July 2019, the UK Data Protection Authority, the Information Commissioner, published new guidance on the use of cookies together with a 'myth-busting' blog post. The new guidance follows the Information Commissioner's June report into ad-tech and real time bidding, which raised substantial compliance challenges in relation to cookies.

Can your website still rely on implied consent techniques? What should your approach to cookie consent look like in practice? Which rules should you look at first, GDPR and/or ePrivacy? Can you rely on an alternative lawful basis under GDPR such as legitimate interest? If you have a cookie wall, is this still compliant? How about analytics cookies, do you need consent for those? Data protection partner Ruth Boardman and senior associate Sanjana Sura have already answered the burning questions in their latest update.

Read more >

What makes a day, a day?

The Full Court of the Federal Court of Australia has handed down a landmark decision in relation to how entitlements to paid personal (sick)/carer's leave should be calculated under section 96(1) of the Fair Work Act 2009 (FW Act).

The decision confirms that employees are entitled to 10 days of personal/carer's leave regardless of the pattern of hours worked.

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Marketing fund disclosure: landmark judgment confirms that franchisors must take full responsibility for compliance with the Australian Franchising Code of Conduct

In a judgment that bolsters recent announcements by the ACCC pressing franchisors to comply with their obligations, the Full Federal Court has confirmed a January 2019 Federal Court finding that a franchisor contravened several aspects of the Franchising Code of Conduct (Franchising Code) and the Australian Consumer Law (ACL), most particularly in relation to certain disclosure obligations owed to its franchisees. 

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Food franchisors not disclosing critical information

Following a review of a sample of Australian food franchisors, the ACCC has clamped down on failures by franchisors to disclose certain information to potential franchisees. While this particular review was limited to the food services sector, the issues uncovered are likely to be indicative of practices within the broader franchise industry.

Read more >

Influencer Marketing

#Advertisement must come first

We reported earlier this year that the Hungarian Competition Authority closed the review of the first decision on rules and obligations applicable for social media marketing. On 16 September 2019 the Authority released a new decision on another review of social media activities – this time relating to a fitness celebrity - where a fine of EUR 15,500 was imposed on the respective companies.

Based on this decision it can be expected that the Competition Authority will not be reluctant to apply fines in order to force social media influencers to refrain from unlawful practices and to send a general, preventive message to market players.

Regulatory

What the Amazon decision can tell us about France's regulatory environment for P2B players

In its judgment produced on the 2 September, the commercial court of Paris considered that a dozen clauses of the general terms and conditions of use imposed by Amazon on its partners to be particularly imbalanced, and that they therefore did not comply with the rules set out in the trade code.

Retail & Consumer Annual Update

Please save the date for our third Retail & Consumer Annual Update, taking place on 9 October in London.

The programme will include a range of commercial and legal topics impacting all parts of the sector across the supply chain, and an exhibition space featuring a number of brands showcasing and demonstrating their products.

Please click here to register for the event.

Influencer marketing has revolutionised the marketing and advertising landscape. But with new opportunities come new challenges, and influencer marketing has attracted increased levels of regulation, resulting in legal and commercial risk to those involved.

It is crucial for retail businesses to understand consumer law and local advertising regulations in the relevant jurisdictions in order to run a successful influencer marketing campaign.

We have created a comparative guide to influencer marketing regulations across the globe, to help you navigate the key obligations in each jurisdiction.

An international perspective on Corporate Power Purchase Agreements (PPAs)

Large corporations are continuing to set the agenda for the growth of renewable energy across the globe. In 2018, 121 corporations purchased 13.4 GW of clean power directly from generators under a Corporate PPA and 2019 is looking like it could surpass this record. A Corporate PPA allows corporate consumers and generators to take advantage of a range of economic, reputational and sustainability benefits.

Covering over 17 countries across Europe and Asia-Pac, our report gives an invaluable oversight of this exciting market and analyses new innovative structures and emerging trends.