Hunton Retail Law Resource

Corporate executives are optimistic about M&A activity in 2021, with 53% of U.S. CEOs in a recent PwC survey stating that their companies planned to increase M&A activity in the coming year. Despite the economic challenges faced in 2020, in large part due to the COVID-19 pandemic, other factors, such as record low interest rates and significant amounts of corporate cash reserves and private equity capital, mean that some strategic and private equity buyers are in a strong position to engage in deal making.

The FTC approved amendments to its Energy Labeling Rule, adding portable air conditioners to the class of appliances requiring yellow EnergyGuide labels effective October 1, 2022, and updating energy efficiency descriptors for central air conditioning units. The vote to approve the Rule was 4-1, with a concurring statement from Commissioner Chopra and a dissent from Commissioner Wilson. These two statements reflect deeply divergent views of the FTC’s role that everyone—not only air conditioner manufacturers—should keep in mind.

The FTC has obtained a $1.2 million settlement in a follow-on action against glue manufacturer Chemence, the largest judgment for a Made in USA the agency has ever imposed. According to the FTC, Chemence violated a 2016 order involving deceptively labeled “Proudly Made in USA” glue products whose inputs were imported. Chemence subsequently provide trade materials claiming its private label glue products were all or virtually all Made in USA when significant proportions of the chemical inputs and overall costs to manufacture the products were attributable to foreign materials. The FTC’s new order prohibits unqualified “Made in USA” claims on Chemence products and requires qualified “Made in USA” claims to conspicuously disclose the origin of the parts and processing of the product. Under the terms of the agreement, Chemence is also required to notify customers and provide compliance reports to the FTC.

The CPSC recently posted guidance on its website for consumer products related to COVID-19, including personal protective equipment. The guidance covers four categories of products: (a) face coverings, (b) gowns, (c) gloves, and (d) disinfectant and cleaning products. The guidance emphasizes that personal protective equipment sold to consumers must comply with all CPSC regulations, which include testing, certification, labeling, and recordkeeping requirements. The guidance drew sharp criticism from CPSC Commissioner Dana Baiocco in a statement:

On November 26, 2020, the French Data Protection Authority announced that it imposed a fine of €2.25 million on Carrefour France and a fine of €800,000 on Carrefour Banque for various violations of the EU General Data Protection Regulation and Article 82 of the French Data Protection Act governing the use of cookies.

As reported on the Blockchain Legal Resource, only a few states have issued guidance on the sales tax treatment of digital currency transactions. On November 2, 2020, Kansas joined this group, with Notice 20-04, Sales Tax Requirements Concerning Digital Currency Under the Retailers’ Sales and Compensating Tax Acts, issued by the Kansas Department of Revenue.

The CPSC took proactive steps in October to address recent concerns with infant sleep products that pose suffocation hazards and could lead to Sudden Infant Death (SID).  This month the agency made a rare proposal for a mandatory consumer product safety standard to address the risks associated with crib mattresses.  The safety standard would incorporate by reference the voluntary standard ASTM F2933-19 (Standard Consumer Safety Specification for Crib Mattresses) with modifications to make the standard even more stringent.  These modifications include increased product performance testing to cover crib mattress firmness, coil spring issues, and face-in-mattress scenarios.  The new rule would also update the product’s warning labels, instructions, and packaging to remove unnecessary wording and emphasize the importance of positioning infants on their backs to sleep.  For example, the proposal compares the voluntary standard’s warning label to the proposed mandatory standard’s warning label:

On Friday, November 6, 2020, the FTC finalized its settlement with Sunday Riley Skincare, a cult-favorite skincare brand known for its high-end products. The action comes after the agency’s initial announcement in October 2019 that employees of the brand, under direction of CEO, Sunday Riley, posted thousands of fake reviews of the brand’s products online over the course of almost two years.

On October 15, 2020, the United States District Court for the Southern District of Texas granted conditional certification to a class of assistant managers (“AM”s) in 550 wireless retail stores across the country. In Martinez v. Mobilelink, assistant store managers in the wireless retailers’ stores alleged that they were regularly required to work unpaid overtime. The employees sought to certify a class consisting of all current and former AMs employed by Mobilelink from March 2017 through the present.

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 ...