Hunton Retail Law Resource

Global design patent strategies are increasingly being relied upon by retail and consumer products companies as a cost-effective way to protect key product lines.  However, it is important to understand the various nuances of global design patent strategies since there are traps for the unwary, most notably in Australia and China.

In a major win for retailers operating in the commonwealth of Massachusetts, the Massachusetts highest court determined, among other things, that the so-called ABC independent contractor test is not the correct metric to determine join employer status. All retailers using subcontractors to support various parts of their businesses should breathe a sigh of relief, although such retailers should immediately evaluate the way that they operate with their subcontractors and the contractual agreements in place to reduce the likelihood of a finding of joint employer liability now that the proper standard has been articulated relating to the Massachusetts wage act.

With the busy holiday shopping season underway, retailers should remain vigilant in their efforts to protect consumers and themselves from the risks of selling potentially unsafe, ineffective or misbranded products in violation of the U.S. Environmental Protection Agency (EPA’s) federal pesticide law, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).  As concerns with the spread of COVID-19 and new variants increase over the winter months, consumers are likely to stock up disinfectant products and devices like air purifiers and air filters marketed to reduce the transmission of COVID-19 and other microorganisms.  These products are tightly regulated under FIFRA, and retailers can unwittingly become entangled in regulatory enforcement actions for selling and distributing products that do not comply with EPA’s regulations.  FIFRA extends legal liability not only to the makers of violative products, but also retailers who sell them to consumers, whether or not the retailer was necessarily aware of the violation. In addition to EPA, state agencies also enforce state regulatory requirements applicable to these products.

The National Advertising Division (NAD) of BBB National Programs recently examined advertising claims by Straight Smile, LLC (Byte), seller of direct-to-consumer teeth aligners, recommending that Byte provide clear disclosures when reviewers of its product receive incentives in exchange for posting reviews.