Hunton Retail Law Resource

On March 6, 2024, by a party-line vote of 3-2, the US Securities and Exchange Commission (SEC) adopted final rules (entitled “The Enhancement and Standardization of Climate-Related Disclosures for Investors”) requiring most public companies to disclose climate-related information in registration statements and annual reports filed with the SEC. The SEC first proposed climate disclosure rules in March 2022, and the proposal has been a source of much debate and controversy, generating over 24,000 comment letters, more than any regulation in the history of the SEC.

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Our 2023 Retail Industry Year in Review provides a comprehensive overview of recent developments, issues, and trends impacting retailers, as well as a look ahead at what to expect in 2024. We hope you will take a few minutes to review our new publication released last week.

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On December 14, 2023, the European Parliament and the European Council reached a provisional deal on the Corporate Sustainability Due Diligence Directive (CS3D). Initially proposed by the European Commission in February of 2022, the CS3D requires certain companies to account for and mitigate adverse human rights and environmental impacts throughout their supply chains, including both their own operations as well as upstream and downstream activities. In November 2022, the European Council adopted the general approach proposed by the European Commission. Since then, the Council and the European Parliament have negotiated the parameters of the CS3D to reach a provisional agreement. While press releases from the Council, the Parliament, and the Commission all confirm an agreement has been reached, the text of the agreed upon CS3D is not yet publicly available. It is likely to be released in early 2024.

With the growing emergence of Extended Producer Responsibility (EPR) laws, companies selling products in the United States must increasingly plan for the end of a product’s life. EPR programs shift waste-management responsibilities that have traditionally been handled by consumers or state and local governments to the “producer” of the product.

On October 7, 2023 California Governor Gavin Newsom signed two landmark climate disclosure laws aimed at making major companies publicly disclose their greenhouse gas emissions and report on their climate-related financial risks. The first, the Climate Corporate Data Accountability Act (SB 253), will require all business entities with an annual revenue exceeding $1 billion to disclose their greenhouse gas emissions in a format accessible to the public. The second, SB 261, will require all business entities with annual revenue exceeding $500 million to publish a report on their “climate-related financial risks” on their websites. These first-in-the-nation laws are broader than the proposed SEC climate disclosure rule and reach more than just California-based entities.

In June 2023, EPA announced the dates for the 2024 submission period for information required under the Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR) rule. The information is collected every four years from manufacturers and importers of certain chemicals in commerce, generally when production volumes for those chemicals are 25,000 pounds or greater in a given reporting year. The 2024 submission period runs from June 1, 2024 to September 30, 2024.

As published on Hunton's Nickel Report, in May 2023, Minnesota’s Governor Walz signed into law HF 2310, which bans the sale of certain products containing “intentionally added” per- and- polyfluoroalkyl substances (PFAS) in 2025 and then all products in 2032, and also establishes reporting requirements for products containing PFAS starting in 2026. Following Maine’s lead, Minnesota has now become the second state in the country to pass a broad ban on PFAS-containing products sold in the state. While reporting requirements apply to product manufacturers, the bans on sale, offer for sale, or distribution in the state apply to “persons,” including retailers. Companies who manufacture products for sale (and who sell) products in the state of Minnesota will need to prepare to assess the presence of PFAS in their supply chains in order to comply with these new requirements.

In February 2023, the US Environmental Protection Agency (EPA)’s Office of Enforcement and Compliance Assurance (OECA) quietly released a Compliance Advisory “What You Need to Know about Producing, Distributing, or Selling Pesticide Devices.” The advisory follows on the heels of similar advisories and provides information to the regulated community about requirements for pesticide devices under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in order to promote compliance. EPA issued this advisory in response to a “significant increase” in the number of pesticide devices being sold or distributed in the US in which EPA has found “substantial non-compliance” with FIFRA requirements. EPA has also experienced a high volume of inquiries from companies and other regulators seeking clarification about pesticide device requirements. The advisory suggests that EPA remains poised to continue taking enforcement actions against companies that import, distribute or sell pesticide devices that do not comply with FIFRA’s requirements.

Electric vehicles (EVs) are becoming increasingly popular, especially with rising gas prices over the past year. EVs now make up roughly three percent (3%) of the global vehicle fleet, up from one percent (1%) at the end of 2020. Last year, President Biden announced a lofty goal for EVs to make up fifty percent (50%) of all vehicles sold in the United States by 2030. The Bipartisan Infrastructure Law, signed by President Biden in November 2021, invests billions of dollars in EV chargers to create accessible charging stations for electric vehicles, and the Inflation Reduction Act passed by Congress in August 2022 provides incentives and tax credits to encourage Americans to purchase EVs.

The FTC has announced the next step in its ongoing review of the “Green Guides.” According to the FTC’s most recent announcement, it is zeroing-in on “recyclable” claims and will be hosting a workshop titled “Talking Trash at the FTC: Recyclable Claims and the Green Guides.” During the workshop, panelists will discuss the kinds of recyclable claims that consumers see in the marketplace, how they perceive or interpret those claims, and the current state of recycling in the U.S.  The half-day workshop is scheduled for May 23, 2023 and is open to the public.

The Maine Department of Environmental Protection (DEP) recently released a long anticipated proposed rule that would implement the procedures for Maine’s 2021 law[1] requiring manufacturers to submit notifications to DEP for products and product components containing intentionally added per- and polyfluoroalkyl substances (PFAS) sold in the state. Stakeholders will have until May 19, 2023, to provide comments on the proposal.

The FTC has announced that it is extending by 60 days (from February 21 to April 24, 2023) the public comment period on potential updates to the agency’s “Green Guides.” As we previously reported, since mid-December 2022, the FTC has been gathering input on various aspects of the Guides for the Use of Environmental Marketing Claims. According to the FTC’s announcement, several interested parties asked the agency for additional time to provide their feedback, citing a desire to conduct consumer survey research and to account for issues such as the extensive range of issues ...

Per- and polyfluoroalkyl substances (PFAS) have taken center stage. The Biden administration’s regulatory agenda plans numerous revisions to environmental regulations to address this broad class of pervasive substances. While the US Environmental Protection Agency grapples with implementing these initiatives, states are aggressively forging ahead with their own plans. Laws targeting PFAS in various products have taken effect and will continue to take effect in many states, representing a striking expansion from typical state regulations addressing environmental PFAS contamination from firefighting foam and other sources.

As we recently reported, the FTC voted to issue a notice in the Federal Register seeking input on updating its Green Guides. The FTC’s notice seeks input on a number of areas addressed by the current Guides, which last were updated in 2012.

On April 14, 2022, the United States Environmental Protection Agency released an updated draft risk assessment for formaldehyde, in which it links long-term, low-dose inhalation of the common chemical to leukemia and various cancers involving the head and neck.  EPA has also identified potential links to non-cancer health outcomes, including sensory irritation, respiratory problems, reproductive and developmental toxicity, and nervous system effects.  The risk assessment associates these potentially adverse health effects with lifetime doses even lower than those identified by EPA in its 2010 draft, which EPA had agreed to revisit after the scientific community and industry stakeholders criticized its methodology.

Several retailers recently settled cases with the FTC over allegations they deceptively marketed “bamboo” textiles. These cases come as some of the first, if not the first, instances of the FTC using its revived civil penalty authority to punish initial offenses by retailers.

Last week, the Securities and Exchange Commission (SEC) revealed its much-anticipated proposal to require that public companies disclose climate-related information. The proposed rule is significant because, for the first time, the SEC would mandate that companies (including foreign companies) publicly traded in the US disclose climate-related risk and greenhouse gas (GHG) emissions information beyond the information currently required by existing SEC rules applicable to registration statements and annual reports.

California’s tough plastic-labeling enforcement is about to get a little stricter.

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.

On September 22, 2021, the Division of Corporation Finance (Division) of the Securities and Exchange Commission (SEC) issued a sample comment letter to highlight its increased focus on climate change-related disclosures or the absence of such disclosures in issuer filings under the Securities Act and the Exchange Act. This sample comment letter follows a recent increase in climate-related comments the Division has issued during the disclosure review process, and many of the sample comments appear to be derived from actual comment letters issued in 2021. The sample is consistent with the SEC’s 2010 Guidance Regarding Disclosure Related to Climate Change, which does not mandate specific, line item climate change-related disclosures, but instead takes a principles-based approach.

In a dramatic recent announcement, EPA suggested that if companies import, manufacture, or process a finished good for commercial sale, and that product is not a pesticide, not a firearm, not a tobacco product, and not a food, food additive, drug, cosmetic, or device, they will need to know all chemicals contained in those products. We explain more about this below.

Environmental justice (“EJ”) is a central focus of the Biden administration’s environmental agenda. On Day One in January, the administration emphasized the importance of EJ in the federal government’s efforts to tackle climate change and to address the disparate impact of decisions affecting natural resources. In addition, many states are implementing their own EJ requirements. In the wake of issuance of new and enhanced EJ policies by both the federal government and states, it behooves lawyers in multiple disciplines to account for EJ issues in their legal practice.

These two worlds are colliding. If any of the products you sell contain hidden ‘forever chemicals’ you will be subject to EPA’s new reporting rule.

Environmental, social and corporate governance (ESG) – like climate change and environmental justice – has been a hot topic of discussion in the early days of the Biden administration. Illustrating the interconnectedness of the trending issues, climate change and environmental justice are pillars of ESG.

A flurry of asbestos-related activity in the last weeks of 2020 will require the United States Environmental Protection Agency (EPA) to devote significant regulatory attention to asbestos in 2021.  The incoming Biden Administration will need to address these Toxic Substances Control Act (TSCA) developments, and the scope of that response will determine whether regulatory implications extend beyond asbestos to other chemical substances.

The Toxic Substances Control Act (“TSCA”) authorizes EPA to regulate virtually all aspects of the manufacture, import, distribution and use of chemical substances in the United States. Unlike many of the federal environmental statutes that EPA administers – which target pollution, waste or site cleanup – TSCA regulates chemicals at the product stage both before and after being introduced into commerce. Under TSCA, EPA imposes numerous regulatory obligations on the domestic manufacturer and importer of industrial chemicals. If your company engages in either of these ...

In the age of COVID-19, demand for surface wipes, sprays and similar products is at record levels. Retail stores have struggled to keep supplies stocked and shelves may once again be emptied when the winter flu season arrives. If schools and businesses reopen concurrently, the prospects of securing these products becomes even bleaker, which may re-fuel consumer stockpiling. To meet this surging demand, manufacturers have ramped up production and new entrants are pouring into this market space in unprecedented numbers. Supply chains are already stressed and further straining is expected to continue.

On October 19, 2020, the New York State Department of Environmental Conservation (“NYSDEC”) will begin enforcing the state’s ban on single-use carryout plastic bags.  Enforcement was delayed from earlier this year due to a legal challenge, which has since been resolved.  Those persons found to be in violation of the ban face a range of consequences from a simple warning for a first offence and civil penalties thereafter.  Grocery stores, retailers and other establishments in New York that may be the target of enforcement will want to carefully review the provisions of this ban and their obligations going forward.

On September 4, 2020, the United States Environmental Protection Agency (EPA) released the final scoping documents for the next 20 chemicals it has designated as “high priority” for risk evaluation under the Toxic Substances Control Act (TSCA). If EPA’s risk evaluation process identifies an “unreasonable risk” associated with any use of a chemical, TSCA requires the agency to regulate the risk. That means manufacturers, distributors, and retailers alike may soon be grappling with new regulations and increased litigation risk as EPA moves forward with its analyses and public scrutiny of these chemicals intensifies.

A consumer advisory issued on June 1, 2020 by the United States Environmental Protection Agency (EPA) clarifies which hard-surface disinfectant products may legally make claims regarding expected efficacy against the COVID-19 virus. The advisory, titled “What You Need to Know Regarding Products Making Claims to Kill the Coronavirus Causing COVID-19,” also warns retailers of potential enforcement actions if they sell non-compliant products.

On April 3, 2020, the United States Environmental Protection Agency (EPA) and leading retailers participated in a conference call to discuss ways to protect American consumers from fraudulent COVID-19 disinfectant product claims. As the pandemic continues to wage on, some manufacturers have started to advertise their products as effective against the virus despite a lack of scientific evidence supporting the claim. Such advertising may violate federal law and potentially endangers consumer health and the environment, and could expose retailers to liability.

On March 30, 2020, the United States Environment Protection Agency (EPA) issued its long-awaited draft risk evaluation for asbestos. In it, EPA preliminarily concludes that certain uses of asbestos pose unreasonable risks to human health. If those conclusions are made final, EPA will issue regulations addressing those risks in what would arguably be the most significant action the agency has taken to regulate asbestos since its 1989 ban was successfully challenged by industry groups.

The United States Environmental Protection Agency (EPA) has announced that it will provide retail companies with significant relief from its Toxic Substance Control Act (TSCA) Fees Rule. In a formal “No Action Assurance” (NAA) letter released to the public on March 25, 2020, EPA confirmed that companies importing products containing any amount of certain common “high-priority” chemicals will not be required to share in the fees for EPA’s upcoming risk evaluations for those chemicals. EPA also announced that it will provide exemptions for companies that manufacture a high-priority chemical only as a byproduct or impurity.

Innovation and developments in technology bring both opportunities and challenges for the retail industry, and Hunton Andrews Kurth has a sophisticated understanding of these issues and how they affect retailers. On January 23, 2020, our cross-disciplinary retail team, composed of over 200 lawyers, released our annual Retail Industry Year in Review. The 2019 edition, Spotlight on Technology, provides an overview and analysis of recent developments impacting retailers, as well as what to expect in 2020 and beyond. Topics discussed include: braille gift cards as the next wave of ...

As reported on December 10, 2019 in Hunton’s environmental law blog, “The Nickel Report”, additive manufacturing, more commonly known as 3D printing, has already found commercial application in various industries and its use is on the rise. 3D printing converts 3D digital models created on a computer or with a scanner into physical objects, usually by successively adding material layer by layer. The process allows manufacturers to make complex designs, rapid prototypes and final products while offering the potential to limit process waste and reduce production costs.

3D ...

The United States Environmental Protection Agency (EPA) has imposed the first penalty for violations of its new rule limiting formaldehyde emissions from composite wood products just over one year after the rule became effective. The $544,064 penalty assessed against construction product supplier Global Sourcing Solutions, a Division of Turner Logistics, LLC (Global Sourcing Solutions), comes as part of a consent agreement between EPA and the company, which will also be required to implement a corrective action plan.

As reported in an August 27, 2019 client alert by the Product Liability and Mass Tort Litigation practice, on August 23, 2019, the United States Environmental Protection Agency (EPA) designated 20 chemicals commonly found in consumer products as “high priorities” for risk evaluation and possible regulation. EPA’s identification of these chemicals comes under the authority conferred by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), which amended the Toxic Substances Control Act (TSCA) in 2016 to give EPA new powers to review and regulate ...

On April 17, 2019, the United States Environmental Protection Agency (EPA) issued a final “significant new use rule” (SNUR) prohibiting over one dozen uses of asbestos from returning to the marketplace without EPA review and approval.

On January 7, 2019, California Assemblyman Phil Ting introduced Assembly Bill 161 which would prohibit businesses from providing paper receipts except upon request, citing “significant positive environmental and public health effects.” The goal of the Bill is to reduce consumers’ exposure to chemicals contained on paper receipts, such as BPA, and to reduce the carbon footprint.

On January 17, 2019, Hunton Andrews Kurth’s retail industry team, composed of more than 200 lawyers across practices, released their annual Retail Industry Year in Review publication.

The 2018 Retail Industry Year in Review includes many topics of interest to retailers, including the use of artificial intelligence (AI), ITC investigations, product recall insurance, antitrust enforcement in the Trump Administration, the collection and storage of biometric data, consumer privacy, SEC and M&A activity in 2018, the #MeToo movement and the impact of cashierless stores.

Just weeks after a federal judge called the science behind the alleged carcinogenicity of glyphosate “shaky,” a California state court jury hammered Monsanto with a $289 million verdict, blaming a former groundskeeper’s non-Hodgkin’s lymphoma on his exposure to the Roundup^® chemical. The August 10, 2018, verdict in Johnson v. Monsanto Co., No. CGC16550128 (California Superior Court, County of San Francisco)—which included $250 million in punitive damages—was just the first in the nearly 8,000 Roundup-related cases currently pending against Monsanto, many of ...

What is California’s Proposition 65?

California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (“Prop 65”) is one of the most onerous chemical right-to-know statutes in the nation. It prohibits businesses with 10 or more employees, including businesses that merely ship products into California, from exposing people in California to listed chemicals without providing a “clear and reasonable” warning.

Why Should I Care?

Bringing a Prop 65 action is relatively easy and lucrative for private plaintiffs and their counsel. In 2017, there were nearly 700 cases settled with defendants paying more than $25,000,000 in plaintiffs’ attorneys fees and penalties. This does not include defense counsel fees, business interruption and other costs to comply.

On July 3, 2018, Governor David Ige of Hawaii signed SB 2571 into law, banning the sale or distribution of any “SPF sunscreen protection personal care product” that contains chemicals oxybenzone or octinoxate without a prescription issued by a licensed healthcare provider. “SPF sunscreen protection personal care product” is broadly defined to include, without limitation, any lotion, paste, balm, ointment, cream, solid stick applicator, brush applicator, roll-on applicator, aerosol spray, non-aerosol spray pump, and automated and manual mist spray. The ban, which Governor Ige indicated is intended to protect marine ecosystems including coral reefs, will go into effect on January 1, 2021. Estimates indicate that at least 70 percent of sunscreen products contain oxybenzone or octinoxate.

Recently, the Securities and Exchange Commission (“SEC”) allowed Apple Inc. to exclude a shareholder proposal from its proxy statement that requested that Apple “produce a report assessing the climate benefits and feasibility of adopting store-wide requirements for having all retail locations implement a policy on keeping entrance doors closed when climate control (especially air-conditioning during warm months) is in use.” 

In a move affecting manufacturers, distributors and retailers in the furniture and other wood-based industries, the Environmental Protection Agency (“EPA”) recently issued a series of amendments to its Final Rule implementing the Formaldehyde Standards for Composite Wood Products Act (the “Formaldehyde Final Rule”), which added Title VI to the Toxic Substances Control Act (“TSCA”). The Formaldehyde Final Rule, 40 CFR Part 770, sets formaldehyde emissions standards for composite wood products and includes requirements for the testing, third-party certification, import certification and labeling of covered products by manufacturers of those products. The Final Rule also imposes requirements on downstream fabricators, distributors and retailers to keep records for at least three years demonstrating that covered products they use, distribute and/or sell are TSCA Title VI-compliant.

As reported in The Nickel Report, our Trends and Developments in Energy and Environmental Law blog, the California Department of Toxic Substances Control ("DTSC") continues to make California’s hazardous waste management program more onerous and complex than the federal Resource Conservation and Recovery Act, which could raise concerns for some retailers. Public comment on DTSC’s proposed revisions remains open through November 6, 2017.

On January 9, 2017, Hunton & Williams LLP announced the formation of a global cross-disciplinary legal team to advise corporations and investors on issues related to sustainability and efforts to increase utilization of renewable energy in connection with clean power procurement goals. The Hunton team brings together lawyers with experience in transactional, finance (including “green bonds” and similar programs), corporate, securities, tax, environmental and real estate law to counsel clients on the complex legal issues arising out of participation in the market for ...

President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (“Lautenberg Act”) into law in June 2016, amending the core provisions of the Toxic Substances Control Act (“TSCA”) for the first time in nearly 40 years. Last month, Hunton & Williams detailed how the Lautenberg Act considerably broadens the Environmental Protection Agency’s (“EPA’s”) authority to evaluate chemical safety and regulate use of chemicals in all stages of the supply chain, including manufacturing, distribution and retail sale. Within six months, EPA must select at least 10 chemical substances and begin risk evaluations on them. EPA must also classify chemicals – including those currently in the retail supply chain – as “high priority” or “low priority” for review, and begin risk evaluations on 20 high priority chemicals within the next three and a half years.

Recently, HoneyBaked Foods, Inc., Wornick Foods and Foster Farms have been in the news because of different kinds of contamination claims. Syed Ahmad and Matthew McLellan, attorneys on Hunton & Williams LLP’s Insurance Coverage Counseling and Litigation team, authored an article entitled A Primer On Insurance Coverage for Food Contamination Losses, which provides an overview of insurance protection for food contamination issues that retailers, wholesalers and manufacturers may encounter. The article describes the insurance coverage available under traditional ...

We previously reported on the proposed regulations initiated by the California Office of Environmental Health Hazard Assessment and its impact on retailers. Retailers should take steps to ensure that they are protected from Prop 65 claims, particularly with the proposed regulations in the pipeline. As with any regulatory requirements that impact businesses, often the best defense is a good offense -- forethought, assessment and implementation of a compliance program can minimize the costs, headaches, business disruption and negative publicity that may otherwise occur.

As we previously reported, the Prop 65 statute prohibits businesses from exposing people in California to any of the over 800 listed chemicals without first providing a “clear and reasonable” warning. Currently, California’s Office of Environmental Health Hazard Assessment is working to repeal existing Prop 65 warning regulations and adopt new requirements. However, the proposed regulations contain several problematic provisions regarding the content and method of transmission for required warnings. Retailers need to be aware of proposed provisions which clearly apportion responsibility for providing warnings throughout the chain of commerce. Though purportedly aimed at reducing retailers’ Prop 65 warning burden, if implemented as written, the provisions will actually increase retailers’ risks and allow manufacturers to insulate themselves from liability at retailers’ expense.

On March 29, 2016, the Federal Trade Commission (“FTC”) filed suit against Volkswagen Group of America (“VW”), which includes Volkswagen of America and Audi of America, for its “Clean Diesel” advertisements.

The complaint alleges VW’s “Clean Diesel” ads made various deceptive claims, including that its diesel technology produced “30% fewer emissions” and reduced “nitrogen-oxide emissions by 90%.” The FTC alleges that the vehicles with VW’s “Clean Diesel” technology were also equipped with a “defeat device” designed to calibrate the vehicle’s emission system to produce legally-compliant emissions during standard emissions testing.

For retailers operating in California, the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (“Prop 65”) is a constant and often costly headache. Among other requirements, Prop 65 prohibits businesses with ten or more employees, including those that ship products into California, from exposing people in California to any of the over 800 listed chemicals without first providing a “clear and reasonable” warning. The statute also contains a prohibition against discharging or releasing listed chemicals to “sources of drinking water” in the state, but those provisions are not discussed here. The list of over 800 chemicals is revised and updated annually.

An important Federal Trade Commission (FTC) decision was announced yesterday that trains a spotlight on claims of “biodegradability.” The FTC found that a manufacturer’s unsubstantiated claims regarding the biodegradability of plastic pellets used as product additives deceived industry and end-use customers. The case reemphasizes the FTC’s intent to enforce the FTC Act against unsupported “green” claims. For retailers and consumer product manufacturers, this case and the recent increase in consumer false advertising class actions emphasizes the importance of:

• due diligence regarding product claims made by vendors – ask for and maintain material to back up the claims and stick to the claims that can be supported; and
• strong indemnities against false and deceptive advertising claims.

California’s Safer Consumer Products (SCP) regulations became effective October 1, 2013. These regulations apply to any “product or part of the product that is used, bought, or leased for use by a person for any purposes.” Given this ample language, the regulations have the potential to affect a wide range of industries and parties in a distribution chain, including manufacturers, assemblers, importers, and even retailers.