Talking Shop October 2019

This newsletter focuses on key news and updates for retail and consumer-facing businesses around the world.

At the end of the newsletter, you can also find details of our upcoming events and recent news, which we think might be of interest to you and your team.

Please get in touch, or visit our webpage for more information about Bird & Bird's Retail & Consumer Group.

• Brexit
• Competition & Consumer Law
• Franchising
• Regulatory
• Social Media
• News & Events

Brexit

Parties negotiating and re-negotiating international contracts should continue to use English governing law and exclusive English jurisdiction clauses in those contracts after Brexit if suitable for their circumstances.

Brexit does not mean a loss of ability to choose English law as the governing law of an agreement, or to ensure that English courts will have jurisdiction, or to enforce English court judgments (on such agreements) in EU Member States. Richard Eccles and Louise Lanzkron explain why.

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Competition & Consumer Law

In the crosshairs: Ashley & Martin required to refund consumers as a result of unfair contract terms

The concept of fairness in trade and commerce has been a recent focus for Australian Courts and regulators alike. The recent decision on relief in ACCC v Ashley & Martin Pty Ltd (No 2) [2019] FCA 1739 is particularly noteworthy for two reasons.

Dutch competition authority announces investigation into big techs entering Dutch payment market

On 22 October 2019, the Dutch competition authority (Authority for Consumers & Markets (ACM)) launched a market study into the activities of the major tech firms (Big Techs) such as Apple, Amazon, Google and Facebook on the Dutch payments market. ACM will also examine whether the Chinese Big Techs such as Tencent and Alibaba are planning to enter the Dutch payments market as well.

The study is being done at the request of the Dutch Minister of Finance and will investigate whether Big Techs have plans to become active competitors on the Dutch payments market, what those plans are, and what impact these plans may have on consumers and businesses.

Franchising in the Netherlands: legislation up ahead

At present, no franchising-specific laws exist in the Netherlands. Instead, franchising is governed by the general principles of contract law as set out in the Civil Code and other laws not specific for franchising such as competition, IP, employment and privacy laws.

A new draft Franchise Act was highly debated during a consultation period in early 2019, and is expected to be sent (changed or unchanged) to Parliament in the final quarter of 2019.

During the consultation period, more than 400 individual franchisees provided their – predominantly positive – input to the draft Franchise Act. Approximately 100 franchisors submitted their predominantly sceptic input. 

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Electronic cigarettes: where does the UK stand amid the international backlash?

In recent months, the safety and regulation of electronic cigarettes (commonly known as "e-cigarettes" or "vapes") has come under public scrutiny internationally by governments and the media following a series of e-cigarette related deaths and lung injuries reported in the United States. In particular, flavoured e-cigarette products which mimic the taste of popular sweets and desserts have been criticised for allegedly encouraging teenagers to try e-cigarettes.

As other jurisdictions turn up the heat on e-cigarette regulation, the UK's promotion of e-cigarettes as an effective smoking cessation aid has come under fire. Should e-cigarette manufactures and retailers brace themselves for new stricter regulations in the UK too?

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Social media and the workforce: the perils and opportunities for employers

Leaving all the legal complications aside, in this article we seek to categorise the key questions that clients ask us about the general challenges that social media is creating in the workplace, and we share our high-level comments.

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News & Events

Retail & Consumer Annual Update

We recently hosted our Retail & Consumer Annual Update in London, which explored key commercial and legal issues impacting on the food & beverage, fashion, luxury, retail & consumer goods, hotels, hospitality & leisure, and wellness markets.

The event kicked off with a talk from Notpla CFO/CCO, Lise Honsinger, and Bird & Bird Counsel Nicolas Carbonnelle, who focused on sustainability, packaging and innovation in plastic reduction. Partner, Ian Edwards, then looked at the use of blockchain in the supply chain, followed by James Mullock, who explored cyber security and supply chain risk management.

Will Deller then explained the implications of the four new consumer directives, before Rebecca Clarke chaired a panel on influencer marketing, with Laura Strange (founder, blogger and influencer, @MyGlutenFreeGuide), Sarah Greenidge (founder, WellSpoken) and Matthew Vandeputte (time lapse photographer, travel filmmaker and influencer @matjoez).

Guests also had the opportunity to meet the brands participating in our exhibitor showcase (The Collective, Prodigy Snacks, Vitl, True Skincare, Notpla, Xeco, Baby2Body and Sambazon) - many of whom provided demos and samples of their products.

Once again, our trade mark team featured prominently in the recent edition of Who's Who Legal: Europe Trademarks, with 18 individuals recognised in this field. We topped their research in the region and also featured 2 practitioners in Asia-Pacific.

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