The Learned Concierge
Welcome to your monthly legal insights on the trends impacting the Retail, Hospitality, and Food & Beverage Industries.
Cybersecurity & Privacy
BetterHelp Settlement with FTC Highlights Need to Review Privacy Policies
The online counseling provider, BetterHelp, reached a settlement with the FTC to pay $7.8 million for the misuse of consumer health data for advertising purposes. Despite claiming in its privacy policy that information would only be used for limited purposes (like providing counseling services), BetterHelp shared consumer email addresses, IP addresses, and the answers to personal health questions with Facebook, Snapchat, and others for advertising purposes. This fine highlights the need for companies to make sure that their privacy policies match their actual behaviors—because when there are discrepancies, fines are likely.
Marketing Company InMarket Banned from Selling or Sharing Location Data
Marketing company, InMarket, reached a settlement with the FTC this month which would prevent the company from sharing precise geolocation data moving forward. The marketing company had collected and shared geolocation information from its apps and from other apps what had incorporated its software development kit. Without the consent of consumers, InMarket was collecting geolocation data which could be used to show where consumers lived, worked, and worshipped. It is important for businesses to understand what information they are providing to marketing firms and other partners to make sure that the disclosures they are making and consents they are receiving are appropriate.
The Monthly Rundown of All Things Cyber, Privacy, and Technology
Click here to read the Right to Know – May 2024, Volume 16
Labor & Employment
New York’s Retail Workplace Violence Prevention Bill Continues to Make Progress
New York State Senate Bill S8358B, also known as the “Retail Worker Safety Act,” is picking up steam as it progresses toward being enacted into law. On May 9, 2024, the bill was amended for a second time and re-referred to the Senate Labor Committee for further evaluation. Click here for additional information on The Retail Worker Safety Act.
Colorado Court of Appeals Adopts Definition of “Actual Discharge” Applied by Federal Courts in Colorado Employment Law Wrongful Discharge Lawsuits
Michael Laszlo authored an article, “Colorado Court of Appeals Adopts Definition of “Actual Discharge” Applied by Federal Courts in Colorado Employment Law Wrongful Discharge Lawsuits.”
In a case of first impression in Colorado, the Colorado Court of Appeals adopts a test for evaluating a claim of actual discharge under Colorado law.
Under Colorado employment law, unless otherwise agreed upon, the default employment arrangement is at-will employment — meaning either the employer or the employee may terminate the relationship at any time, for any reason, so long as any termination is not in violation of public policy. However, there is an exception to an employer’s ability to terminate for any reason at all under an at-will employment. That is, an employer cannot terminate an at-will employee in violation of public policy.
EEOC’s Updated Guidance Provides Insight and Opportunity for Employers to Modernize Policy and Training
Yvette Heintzelman authored an article, “EEOC’s Updated Guidance Provides Insight and Opportunity for Employers to Modernize Policy and Training.”
On April 29, the Equal Employment Opportunity Commission issued its Enforcement Guidance on Harassment in the Workplace. While not binding law, the new guidance aims to provide updated information on EEOC’s expanded view of what constitutes workplace harassment, including the expansion of Title VII’s prohibition on sex discrimination based on sexual orientation and gender identity as the U.S. Supreme Court determined in Bostock v. Clayton County in June 2020. This new guidance updates and replaces the EEOC’s previous five guidance documents to provide a single resource for the public on EEOC-enforced workplace harassment laws.
EEOC Sues Employers for Failure to File Required EEO-1 Reports
The EEOC requires employers who have 100 or more employees or who are federal contractors to file certain mandated demographic information which is shared among other federal agencies involved in the enforcement of federal employment laws. While the data is confidential, data is aggregated and available to the public. There are fines and penalties for non-compliance as the referenced lawsuits demonstrate. EEOC Sues 15 Employers for Failing to File Required Workforce Demographic Reports | U.S. Equal Employment Opportunity Commission Several of the named employers are in the retail and hospitality field. 2023 EEO-1 Reports were due on June 4, 2024, and employers who have not submitted their reports are encouraged by the EEOC to do so as soon as possible, but no later than July 9, 2024 (“Failure to File” deadline).For me details, see here.
Maryland Joins the Wage Transparency Movement
Effective October 1, 2024, the State of Maryland will join several states that require disclosure of wage information to current employees and applicants. To comply with the new law, employers must disclose in public or internal job postings for each position a good faith wage range and a general description of benefits and other compensation offered for the position. The law also requires detailed wage and deduction information on paystubs.
The Sixth Circuit (Michigan) Rules that Requests for Job Accommodations Can be Inferred without an Explicit Request
In Yanick v. The Kroger Company of Michigan, 21-11582 – Yanick v. The Kroger Co. of Michigan – Content Details – (govinfo.gov), the Sixth Circuit expanded the scope of what an employer should understand is a request for an accommodation under the Americans with Disabilities Act (ADA). Employers must draw reasonable inferences from what employees communicate and from the overall circumstances. A key takeaway from this decision is that employers should start the interactive process of discussing accommodations without waiting for a formal or written request by the employee.
International Trade
U.S. Blocks Imports From 26 More Chinese Companies Over Forced Labor Concerns
The U.S. will block imports from dozens of Chinese textile companies over their alleged ties to forced labor, a move that follows U.S. industry complaints about unfair competition. On Thursday, the Biden administration will announce the addition of 26 companies to what is known as the Uyghur Forced Labor Prevention Act Entity List. The list names businesses that the U.S. alleges are involved in exploiting forced labor from China’s Xinjiang region, home to the Uyghur people and other minority groups. Click here to learn more.
Mexico Increases Import Duties on Multiple Products by 5% to 50%
Aristeo Lopez and Mark Ludwikowski authored an article, “Mexico Increases Import Duties on Multiple Products by 5% to 50%.”
On April 22, Mexico increased import duties to 544 tariff lines ranging between 5% and 50%. The increase will be enforced for two years, ending in April 2026.
Among the products covered by the new measure are the following: steel, aluminum, textiles, clothing, footwear, wood, plastics, chemical products, paper and cardboard, ceramic products, glass, electrical equipment, transport equipment, musical instruments, and furniture. Agricultural products are not included.
Food Labeling
Front-of-Package Labels: A New Era of Transparency in the Food Industry?
Even in supermarkets with the most kaleidoscopic array of items — dozens of cereals, a wall of jams in glass jars, a parade of soup cans — there’s relatively little variation in how those foods are packaged. On the front of a can or box is the main label, containing the product name and maybe some zesty marketing copy, while nutrition information is organized in a standardized panel on the back. However, this hasn’t always been the case. Click here to learn more.
Latin America Labels Ultra-Processed Food. Will the U.S. Follow?
Latin America is leading the world in a movement to print nutritional warning labels on the fronts of food packages. Currently, the labels warn when a food product exceeds a consumer’s daily recommended value of any “nutrient of concern” – namely, sugar, salt, or saturated fat (some countries have added trans fats, artificial sweeteners, and caffeine). But research led by scientists across the continent is increasingly pointing towards another factor consumers may want to consider how processed a food is. Click here to learn more.
ESG (Environmental Social & Governance) Trends
Food Advertising and Environmental Claims: A Balancing Act for Businesses
The Advertising Standards Authority (ASA) has published a report on its research into consumer understanding of environmental claims in food advertisements (Environmental claims in food advertising – ASA | CAP). While some of the findings are unsurprising, they also reveal important insights into inferences consumers draw from different kinds of claims and challenge the view that reducing their environmental impact is a primary focus for consumers who respond to environmental claims. To learn what businesses should do, click here.
Teaching Against Waste: How Marketing Education Can Transform Food Sustainability
In the face of escalating food costs and increasing food insecurity, a staggering 40 percent of fruits and vegetables are discarded before they even reach the consumer, primarily due to their failure to meet aesthetic standards. This rejection based on size, shape, or weight contributes significantly to environmental degradation, with unconsumed food accounting for approximately 8 to 10 percent of global greenhouse gas emissions. Initiatives like Misfits Market in the United States and the “naturally imperfect” line by Loblaw Companies in Canada are beginning to turn the tide by marketing less visually appealing yet perfectly edible produce at reduced prices. The movement toward embracing imperfect produce is crucial in reshaping consumer perceptions and improving supply chain dynamics. Click here to learn more.
Greenhouse Gas Emission Labels Needed on all Food Packaging
Food needs on-pack labelling of greenhouse gas emissions in order for consumers to make informed choices and help reduce their environmental impact, according to new research. Click here to learn more.
Environmental, Energy, and Natural Resources
New Rulemaking Effort Aims to Keep Toxics Out of Cosmetics
In 2023, the Washington state Legislature passed the Toxic-Free Cosmetics Act (“TFCA”). The Act restricts the manufacture, distribution, and sale of cosmetic products within Washington state that contain certain toxic chemicals. As of January 1, 2025, the TFCA will restrict nine toxic chemicals and chemical classes, including formaldehyde, mercury and mercury compounds, and lead and lead compounds, from cosmetic products. The Washington State Department of Ecology (“Ecology”) has started the rulemaking process, which will establish which chemicals Ecology will restrict and by when. Ecology anticipates restrictions on up to 10 formaldehyde-releasing chemicals could take effect as early as January 1, 2026. Interested parties are invited to participate in an informal comment period from May 22 through August 13, 2024.
EPA Adopts PFAS Drinking Water Standards Establishing de Facto Groundwater Cleanup Standards
Stephen Campbell and Mark Steger authored an article, “EPA Adopts PFAS Drinking Water Standards Establishing de Facto Groundwater Cleanup Standards.”
On April 10, the U.S. Environmental Protection Agency (EPA) adopted the final National Primary Drinking Water Regulations (Rule) for six per- and polyfluoroalkyl substances (PFAS): perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), perfluorohexane sulfonic acid (PFHxS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX Chemicals), and perfluorobutane sulfonic acid (PFBS).
The Rule establishes both legally enforceable Maximum Contaminant Levels (MCLs) and health-based, non-enforceable Maximum Contaminant Level Goals (MCLGs) for these PFAS in drinking water. This Rule also effectively establishes groundwater clean-up standards in some states including Michigan, Pennsylvania, and Wisconsin, and, for two of the identified PFAS (PFOA and PFOS) the Rule establishes the remedial action cleanup criteria for hazardous substances in groundwater under the Federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Industry Trends
Americans Are Racking Up “Phantom Debt” That Wall Street Can’t Track
Consumers have embraced “Buy Now, Pay Later” products that allow them to pay for purchases in installments, but it’s not clear how many of these loans are out there. It’s hard enough for central bankers and Wall Street traders to make sense of the post-pandemic economy with the data available to them. At Wells Fargo & Co., senior economist Tim Quinlan is particularly spooked by the “phantom debt” that he can’t see. That specter lurks behind buzzy “Buy Now, Pay Later” platforms, which allow consumers to split purchases into smaller installments. Click here to learn more.
Illinois Passes Bill Eliminating Swipe Fees on Taxes and Tips
The Illinois state legislature passed its budget bill this week, and it includes a provision that prohibits swipe fees on sales taxes, state excise taxes and gratuities. While other states have considered this type of legislation, this is the first time it has passed into law, marking a notable victory for retailers seeking relief from swipe fees. The Interchange Fee Prohibition Act will allow retailers to receive reimbursement for swipe fees paid on taxes and gratuities. Click here to learn more about the Interchange Fee Prohibition Act.
