Hunton Retail Law Resource

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.

On December 13, 2023, New York Governor Kathy Hochul signed Senate Bill S1048A into law requiring sellers that impose credit card surcharges to post the total price, inclusive of the surcharge. In addition, the surcharge to customers may not exceed the amount of the surcharge charged to the business by the credit card company for such credit card use. Per the legislative history, “This bill is necessary to prevent consumers from being misled when making a purchase using their credits cards.”

The Federal Trade Commission has announced that it will hold an informal hearing on February 13, 2024 on the agency’s proposed rule banning fake reviews and testimonials. As we reported in July 2023, the FTC is proposing to ban business from using illicit review and endorsement practices such as using fake reviews, suppressing honest negative reviews and paying for positive reviews, which deceive consumers looking for real feedback on a product or service and undercut honest businesses.

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.

Earlier this month, a Pennsylvania federal judge held that users of Bass Pro Shops’ and Cabela’s websites lacked Article III standing to sue the retailers for use of “session replay” software, where the users failed to allege that the software captured their personal information, such as financial data or medical diagnosis information.  In Re: BPS Direct, LLC, and Cabela's, LLC, Wiretapping, No. 2:23-md-03074 (E.D. Pa. Dec. 5, 2023).  

Strip malls are seeing a surge in valuation, perhaps due to Americans’ desire for the in-and-out convenience that they offer due to their proximity to main roads. Once seen as eyesores, some strip malls are getting face lifts. With many Americans working from home at least a few days per week, consumers are craving accessibility, one-stop shopping and easy parking. As a result, strip malls are seeing an increase in foot traffic during weekdays. Trips to strip malls increased 18% in 2022 compared with before the COVID-19 pandemic. Most visitors of strip malls are hyper-local and visit the centers frequently and for short durations. 

Last week, the FTC sent high profile warning letters to two trade associations, the American Beverage Association (AmeriBev) and the Canadian Sugar Institute, and 12 registered dieticians regarding inadequate disclosures in the dieticians’ social media posts. While the specific influencer posts varied across dietician, they all related to the safety of aspartame, an artificial sweetener, and other messaging regarding the benefits of consuming sugar-containing products. Further, some dieticians even went so far as to call the World Health Organization’s warnings regarding aspartame and artificial sweeteners as based on “low-quality science” and “clickbait” evidence. While some of the dieticians included words like “#Ad” or “Sponsored” in their posts, according to the FTC most failed to provide obvious disclosures informing consumers that they were watching an ad that had been paid for by an industry association. The FTC’s warnings alleged that inconspicuous messaging surrounding these partnership deals led to consumer confusion regarding who ultimately was responsible for the influencers’ nutrition messaging. And according to the FTC, the fact that these influencers are registered dieticians increases the public’s confidence in the information they disperse, thus heightening the need for them to be clear about their partnership affiliations.

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.

As we reported Friday, the FTC has proposed a rule to ban misleading and hidden fees. While that initiative is pending, California Governor Gavin Newsom signed similar legislation, SB 478, into law. Effective July 1, 2024, the California statute prohibits advertising, displaying, or offering a price for a good or service that does not include all mandatory fees or charges other than taxes or fees imposed by a government on the transaction, or postage or carriage charges that will be reasonably and actually incurred to ship the physical good to the consumer. The legislation takes aim at ...

The FTC announced a Notice of Proposed Rulemaking (NPRM) targeting misleading and hidden fees, commonly known as “junk fees,” and how businesses may advertise and market prices to consumers. The NPRM was drafted based on over 12,000 public comments to the FTC’s Advance Notice of Proposed Rulemaking published in November 2022.