Hunton Retail Law Resource

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.

The National Advertising Division of the Council of Better Business Bureaus (“NAD”) has settled competing challenges between Kraft Heinz, the maker of Heinz Real Mayonnaise, and Unilever, the maker of Hellmann’s REAL Ketchup.

Retail stores and businesses are generally free to develop their own policies regarding acceptance or non-acceptance of certain forms of payment. For years, many small businesses have refused credit card payments entirely or credit card payments for transactions under a certain amount due to high transaction costs. Smaller retailers may also refuse certain brands of credit cards. However, a different trend has emerged in recent years as an increasing number of retailers are refusing to accept cash and instead accepting only credit/debit and smartphone payments.

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.

In a recent unpublished ruling, the Ninth Circuit affirmed the dismissal of a putative class action lawsuit alleging that Blue Diamond Growers mislabeled its almond beverages by failing to identify products as “imitation milk.” Painter v. Blue Diamond Growers, No. 17-55901 (9th Cir. Dec. 20, 2018).

MillerCoors launched a “Know Your Beer” campaign that included digital vignettes featuring beer customers who were asked to taste two unnamed beers (Miller Light vs. Bud Light), determine which beer had “more taste,” and select their choice. When the identities of the two beers were revealed, the vast majority of participating consumers expressed surprise at having chosen Miller Lite over Bud Light.

December was a quiet month in the world of recalls for two reasons. First, there were only 19 product recalls—the second lowest number of monthly recalls in 2019. Second, the partial federal government shutdown has forced the CPSC along with other agencies to close until President Trump and Congress can resolve their well-publicized funding dispute.

In a 2017 interview, Nigel Travis, former CEO of Dunkin’ Brands, stated that “delivery will be the next wave” in the restaurant industry and that it would “be like a revolution,” occurring “faster than anyone thinks.” Travis was not wrong; in fact, recent statistics shared by Melissa Wilson at the 2018 Restaurant Leadership Conference show Travis’ prediction quickly taking hold – 86% of consumers are using off-premise delivery services at least monthly and one third of consumers are using it more than they did a year ago. By some estimates, delivery services are projected to grow at least 12% per year over the next five years. While a handful of restaurants are filling the delivery demand themselves, more and more restaurants are looking to third-party delivery service providers to help them connect with the consumer. In fact, “third-party delivery services like UberEats, Grubhub, and Postmates currently represent $9 billion in restaurant sales today, and they are predicted to account for $16 billion in sales by 2022.”

As the new year gets off to a start, employers in the retail industry will be making wage adjustments to meet current and future minimum wage increases.  Employees in 21 states around the country will see their state’s minimum wage increase.

The FTC has proposed amendments to its Energy Labeling Rule. The Rule requires manufacturers to attach yellow EnergyGuide labels providing estimated annual energy cost, energy consumption, and a comparability range to covered products, and prohibits retailers from removing these labels or rendering them illegible. The Rule also requires sellers, including retailers, to post label information on websites and in paper catalogs from which consumers can order products.