The Learned Concierge
Welcome to your monthly legal insights on the trends impacting the Retail, Hospitality, and Food & Beverage Industries.
ESG and Sustainability
MEPs Adopt New Law Banning Greenwashing and Misleading Product Information
In late January, the European Parliament approved a Greenwashing Directive, which will next go to the European Council for final approval. Then, EU member states will have 24 months to transpose the approved directive into national law. The directive will affect how companies operating in the EU/EEA communicate their sustainability and ESG efforts by amending certain provisions of the Unfair Commercial Practices Directive. The Greenwashing Directive is intended to work in tandem with the Proposed Green Claims Directive to help counteract greenwashing concerns across the European market. More information, click here.
Environmental and Natural Resources
PFAS: February 2024 Update and Preview
Joseph Brendel, Chris Clare and Mark Steger authored an article, “PFAS: February 2024 Update and Preview.” Regulatory activity and litigation concerning per- and polyfluoroalkyl substances (“PFAS”) continued to pick up steam in 2023, and 2024 promises to continue this trend and present companies with new PFAS-related challenges.
Cybersecurity and Privacy
The Monthly Rundown of All Things Cyber, Privacy, and Technology
Click here to read the Right to Know – February 2024, Volume 14.
Ransomware Payments Hit Record High in 2023
Recent Chainalysis study released on February 7, 2023 found that ransomware payments in 2023 hit a record high of $1.1 billion. This record comes after ransomware payments declined in 2022 (with total payments found to be $567 million. This increase continues a historic trend of increasing ransomware payment costs—costs which do not factor in productivity or repair costs—only the costs of paying the actual ransom.
Temu Sued in Class Action Lawsuit Over Data Privacy Concerns
Online Chinese-owned shopping platform, Temu, was sued in the U.S. District Court for the Northern District of Illinois over its practices for handling consumer personal information. The lawsuit claims that Temu has tools that can collect photos, contact information, text messages, and virtually all personal information on a user’s phone. The suit details how the Temu app is “purposefully and intentionally loaded with tools to execute virulent and dangerous malware and spyware activities on user devices.”
Labor and Employment
Comparison of Recent Illinois, Cook County, and Chicago Paid Leave Laws
In 2023, the State of Illinois, Cook County, and the City of Chicago each passed laws requiring employers to provide paid leave to their employees to use for any reason. While the intent behind the three new laws was the same, the three laws are unique and contain distinct requirements for employers. This understandably could be confusing for employers, particularly those who employ workers at more than one location throughout the State of Illinois. Clark Hill Member Jon Vegosen and Senior Attorney Renee Fell have prepared a chart that compares and contrasts the requirements of the three paid leave laws to help employers understand their responsibilities under each law. The chart may be accessed here.
Higher Wages are Coming for California’s Fast-Food Workers. Here’s What to Know About the New Law
Gov. Gavin Newsom on Thursday signed into law a sweeping deal his office helped forge between fast-food companies and unions that will give workers in the industry a pay increase next year.
The legislation represent a rare peace agreement, hammered out in negotiations over the summer, that allows businesses and unions to avoid a costly statewide ballot measure fight over wages.
Beyond the complex politics involved, the deal provides a series of benefits to workers, and some key concessions to employers, that will kick in next year. Click here to learn more about the agreement.
CDC (Centers for Disease Control and Prevention) Updates its Isolation Policy
The CDC (Centers for Disease Control and Prevention) has updated is COVID-19 Guidance for the first time since 2021. The Guidance (Respiratory Virus Guidance) is equally applicable to other highly contagious viruses, including influenzas and RSV (respiratory syncytial virus), which the CDC said have similar symptoms (cough and fever) and means of spreading, and require the same preventive strategies. The CDC’s updated guidance remains consistent in its advice regarding vaccines for COVID, RSV and Flu to reduce the spread of these illnesses and lessen the severity of symptoms.
Per the new Guidance, workers can return to work if they are fever free for at least 24 hours (without the use of fever-reducing medication) and symptoms are improving, regardless of whether they have re-tested and remain positive. Also, the CDC recommends that following isolation, workers use preventative strategies for the next five days, including limiting close contact with others, wearing a mask, using enhanced hygiene efforts (hand washing), and improving ventilation.
Respiratory Virus Guidance Update FAQs | CDC
EEOC Increases Monetary Penalties for Posting Violations
ON February 16, 2024, the EEOC issued a final rule increasing the monetary penalty for violation of the notice-posting requirements under several of the federal anti-discrimination laws, including Title VII, the Americans with Disabilities Act, the Genetic Information Non-Discrimination Act, and the Pregnant Workers Fairness Act.
Federal Register: 2024 Adjustment of the Penalty for Violation of Notice Posting Requirements
Food and Beverage
Food Firms “Harming Children with Unhealthy Products and Misleading Advertising”
The Government has a duty of care to ensure companies stop profiting from “harming” children with unhealthy food and misleading advertisements, health campaigners have said.
Youth campaign group Bite Back believes the Government and food corporations have a collective responsibility for the health of young people which they are currently failing on. For information, click here.
Memphians in Alcohol Industry React to TN Proposed Bill Banning Cold Beer Sales in Attempt to Prevent DUIs
Controversy is brewing over a proposed bill that would put a deep freeze on selling cold beer in Tennessee, and Memphians in the industry are not happy.
The Tennessee Prevention of Drunk Driving Act, proposed this week by West Tennessee Republicans Ron Gant and Paul Rose, would ban all sales of cold beer in the state. According to the Tennessee Department of Transportation, one out of three fatal car crashes involve a DUI. Click here to learn more about the proposed bill.
New Mixed Beverage Licenses in Virginia available in July of 2024
Virginia Code Section 4.1-206.3 will become effective on July 1, 2024, providing the Alcoholic Beverage and Cannabis Control Board the ability to grant licenses to businesses to sell and serve mixed beverages for on-premises consumption. These licenses are only available to businesses whose receipts for the sale of prepared (cooked) food and nonalcoholic beverages served on the premises equals at least 45% of the gross receipts for the sale of mixed beverages and food.
§ 4.1-206.3. (Effective July 1, 2024) Retail licenses
International Trade
New Trade Case on Imports of Melamine from Germany, India, Japan, the Netherlands, Qatar, and Trinidad and Tobago
New U.S. antidumping duty (“AD”) petitions were filed on February 14, 2024, by Cornerstone Chemical Company (“Petitioner”) against imports of melamine from Germany, India, Japan, the Netherlands, Qatar, and Trinidad and Tobago. The petitions also seek the imposition of countervailing duties (“CVD”) on imports of melamine from Germany, India, Qatar, and Trinidad and Tobago.
The merchandise covered by these petitions consists of melamine (Chemical Abstracts Service (“CAS”) registry number 108–78–01, molecular formula C3 H6 N6). Melamine is a crystalline powder or granule typically (but not exclusively) used to manufacture melamine formaldehyde resins, the major end uses of which include surface coatings, laminates, molding compounds, paper treatment, adhesives, and textile-treatment applications in the automotive, appliance, dinnerware, furniture, fabric, and wood paneling industries. Typical laminate products include kitchen and bathroom countertops, tabletops, doors, and cabinets. All melamine is covered by the scope of these orders irrespective of purity, particle size, or physical form. Click here for the full text of the proposed scope for the investigations.
U.S. Trade Deficit with China Narrows to Lowest Since 2010
The U.S. goods-trade deficit with China shrank to the smallest total since 2010 last year, reflecting a decline in imports from its geostrategic rival that will be welcomed in Washington.
The excess of imports over exports to China was $279 billion, US Commerce Department data showed Wednesday. As a share of GDP, the goods deficit with China came in at just 1%, the lowest level since 2002.
Chinese imports have faced higher tariffs since former President Donald Trump imposed protectionist measures against the country during his administration. The Biden administration has also sought to reduce China’s role in US supply chains, and to bolster trade with strategic allies and partners instead. To learn more, click here.
Unfair Competition/Litigation Issues
NJ District Court Found “Not Made in the USA” and Liability for False Advertising
The US District Court of New Jersey in Camden ordered a manufacturer, Albion Engineering, who was advertising its goods as “made in the USA” to disgorge $2.1 m for false advertising to a competitor, Newborn Brothers Co. The Court’s order also required Albion to pay its competitors attorneys’ fees and to provide notice to the public who may have purchased the goods in a retail store and to notify distributors of its products. Albion is also required to post an 8 x 10 poster to be displayed in locations where its products are sold that it is under a court order to accurately comply with country-of-origin disclosure requirements. The order requires Albion to coordinate with US Customs and Border Protection about marking of its products. While an appeal is pending, this is an expensive example of ensuring the accuracy of origin of component parts of a product.
$2.1 Million: Court Extracts Hefty Price for Fake ‘Made in the USA’ Label | New Jersey Law Journal (subscription may be required)
Regulatory Issues
FDA has Enacted a Number of Regulatory Measures
The FDA added five guidance documents to its Foods Program Guidance Under Development, including setting action levels for lead in food intended for babies and young children, the food traceability rule, the voluntary sodium reduction goals, a draft guidance for the industry on preventative guidance for chemical hazards, and notification requirements for the discontinuance of infant formula manufacturing.
Foods Program Guidance Under Development | FDA
Industry Trends
Three Retail Trends for 2024
Explaining consumer spending involves a lot of contradictions. Consumer spending is strong. But consumers are stretched. Consumers are shifting spending to services like restaurants, travel, and concerts and away from goods. But certain goods like consumer staples should remain strong in economic downturns. E-commerce has been resilient relative to total retail sales. But only for certain segments. This article discusses those contradictions along with retail trends for 2024.
What Will Retail Look Like in Five Years? Top Industry Executives Share Their Predictions
Retail has seen unprecedented upheaval over the last several years. Some of the industry’s key decision-makers expect even more evolution ahead.
Covid-related shocks have upended retail, after clogged ports and merchandise shortages gave way to excess inventory levels and shifting consumer demands amid persistent inflation.
Those disruptions accelerated transformations in the industry that were just hitting some companies before the pandemic, such as the growth of curbside pickup and increased use of mobile apps.
As retail leaders enter 2024 hoping the turmoil is now behind them, they’re building businesses for the future and making changes that will transform the industry. To learn more, click here.
Food & Beverage Insider Predictions for 2024
Predictions for the food and beverage industry for Year 2024 from Mintel and the International Food Information Council (IFC) include:
- Greater transparency from brands with focus on clean labels and less-processed foods;
- Plant-based market and flexitarian consumers is expected to grow, and brands will need to focus on affordability and reaching larger audiences;
- Technology improvements with a focus on convenience to help consumers meal plan, shop and cook; and
- “Age Reframed” – Gex X focused on healthy aging products to meet the needs of an expanded life span.
2024 food & beverage trends from IFIC, Mintel (foodbeverageinsider.com)
Chicago to Vote Soon on Dollar Store Crackdown
Chicago’s City Council is expected to vote next week on a proposal to limit where certain dollar stores can open.
Why It Matters: The proposed crackdown on dollar stores comes as many alders decry maintenance and safety issues at the stores, while others say they keep a crucial retail presence in neighborhoods abandoned by larger stores. Click here to learn more.
