Hunton Retail Law Resource

On March 23, 2023, the FTC issued a notice of proposed rulemaking aimed at deceptive and unfair practices involving recurring charges for automatically renewing subscriptions and memberships. The proposed rule is part of a broader FTC initiative designed to crack down on “dark pattern” tactics that retailers employ to aid in customer acquisition and retention, among other things. Difficult cancellation procedures for subscription-based services are one such tactic identified as problematic by the FTC and targeted by the new proposed rule.

On March 16, 2023, the Federal Trade Commission announced it issued orders to eight social media and video streaming platforms seeking Special Reports on how the platforms review and monitor commercial advertising to detect, prevent and reduce deceptive advertisements, including those related to fraudulent healthcare products, financial scams and the sale of fake goods. The FTC sent the orders pursuant to its resolution directing the FTC to use all available compulsory process to inquire into this topic, and using the FTC’s Section 6(b) authority, which authorizes the FTC to conduct studies that do not have a specific law enforcement purpose.

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.

The New York Attorney General’s Office (OAG) recently announced several proposed rules are intended to combat price gouging in New York during state emergencies. The OAG promulgated the rules pursuant to its authority under New York General Business Law 396-r, which makes it unlawful to sell goods and services “vital and necessary for the health, safety and welfare of consumers or the general public” at an “unconscionably excessive price” during “any abnormal disruption of the market.” The statute defines an abnormal disruption of the market as “any change . . . resulting from stress of weather, convulsion of nature, failure or shortage of electric power or other source of energy, strike, civil disorder, war, military action, national or local emergency, or other cause . . . which results in the declaration of a state of emergency.” N.Y. Gen. Bus. Law § 396-r(2).  

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.

A recent settlement filed by the Federal Trade Commission (FTC) and GoodRx may merit a review of your cyber insurance coverages. Earlier this month, the FTC took enforcement action for the first time under its Health Breach Notification Rule against the telehealth and prescription drug provider, GoodRx, for failing to notify consumers of its unauthorized disclosures of personal health information.

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.

In a significant change to the European patent system that will impact patent prosecution and enforcement strategies in one of the world’s largest retail markets, the European Unified Patent Court (UPC) begins operations and the European Patent with Unitary Effect (Unitary Patent) will be available at the European Patent Office (EPO) on June 1, 2023. Early requests for Unitary Patent protection on applications that may grant prior to June 1 can be filed starting March 1.

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.

On February 10, 2023, an Illinois federal district court ordered the dismissal of a putative class action lawsuit alleging that an online tool that allowed users to virtually try on sunglasses violated the Illinois Biometric Privacy Act (“BIPA”).