Talking Shop April 2021

This newsletter focuses on key news and updates for retail and consumer-facing businesses around the world, including our latest briefings on the COVID-19 pandemic and its impact on the sector. You can find all our COVID-19-related updates for retail and consumer businesses on our dedicated InFocus page here.

At the end of the newsletter, you can find details of our recent news and events, 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.

In this newsletter:

• Special Feature: London & the Consumer
• Advertising & Marketing
• Competition
• Consumer Law
• Employment
• Franchising
• Intellectual Property
• Product Compliance & Liability
• Restructuring & Insolvency
• Tax
• News & Events

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Special Feature

London & the Consumer

The pandemic has upended UK consumers’ lives over the past year as lockdowns and tiered restrictions have limited the activities that are core to consumer spending. Yet consumers have shown themselves to be resilient in getting out and about again when restrictions permit. What will life be like for consumers on the ground in London? Will shopping habits adopted during lockdowns stick? And how will consumer-facing businesses adapt to the future consumer landscape?

Read more >

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Advertising & Marketing

Spain: The use of influencers in Spanish marketing

On 1st January 2021, a new Code of Conduct, developed by AUTOCONTROL and the Spanish Association of Advertisers (AEA) and applying only to Spain, entered into force and established much-needed guidelines governing the relationship between social media networks and the advertising of goods and services, in particular, by so-called “influencers”.

Read more >

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Competition
France: A sandwich cartel case, or how leniency can get you out of a pickle

The French Competition Authority recently fined the three main French manufacturers of sandwiches for mass retail distribution for having implemented a volume and customer allocation plan over a six-year period and agreed on the price level to be offered to their customers. All of them applied for leniency and obtained substantial reductions in fines.

Read more >

Sweden: Competition on the market for digital platforms

In February 2021 the Swedish Competition Authority (“SCA”) published a report which covers the increasing influence of digital platforms within the field of competition law.

In its report, the SCA has analysed five markets along with the SCA´s previous decisional practice (concerning digital markets) in order to assess whether and in what way impediments to effective competition exist on digital platforms. Furthermore, in its report the SCA considers whether it is possible to exercise effective enforcement within the existing competition rules, or if there is a need for regulatory reforms or supplementary regulation to effectively enforce competition law in relation to digital platforms.

Read more >

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Consumer Law

Hungary: How the e-warranty card helps international delivery of goods and protection of consumer rights

As of 1 January 2021, new rules entered into force affecting the statutory warranty rules for durable consumer goods in Hungary. The regulation is not entirely new but contains amendments to the standing Government Decree No 151/2003. The Decree applies to new products and B2C sales only. The Decree previously set out the statutory warranty term for durable consumer goods as being one year; and the Annex to the Decree specified which consumer goods the Decree applies to. The specific listed goods were generally identified as having a sales price of over HUF 10.000 (i.e. approximately EUR 30.

The new rules affect the statutory warranty terms by introducing a new approach, where the mandatory term (1-2-3 years) depends on the sales price; extending the Decree’s scope to new product categories by complementing the list of goods in the Annex; introducing electronic warranty cards (e-warranty cards); and setting out specific timeframes for repairs and replacements. The enforcement of the statutory warranty, including those based on e-warranty cards, cannot be conditional upon requesting the consumer to return the opened packaging of the concerned product.

Read more >

Czech Republic: E-commerce is preparing for new obligations in doing business with consumers

EU Member States are obliged to implement the Digital Content Directive (Directive (EU) 2019/770) and the Sale of Goods Directive (Directive (EU) 2019/771) by 1 July 2021. The Czech Government has thus prepared the implementing bill that will amend the Civil Code (Act No. 89/2012 Coll., as amended) with the aim of strengthening legal certainty for consumers and businesses. We provide a brief overview of the proposed changes.

Read more >

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Employment

Australia: Menulog to trial employment model for food delivery service

As an industry-first in Australia, Menulog has announced that it is reassessing its current independent contractor model, and trialling the engagement of its delivery drivers as employment relationships.

Menulog, along with industry rivals such as Uber and Deliveroo, is a household name in the ever-expanding gig economy. Each has previously maintained that the engagement of delivery drivers as independent contractors means that the drivers have flexibility in their hours and days of work. On the flipside, unions would say the key drawback of this is that as contractors, the drivers are not entitled to industry minimum wages and other protections.

Read more > 

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Franchising

UAE: Franchising in a pandemic

No one could have predicted the impact of COVID-19 on the global economy and social life. Conversations around when things will get back to “normal” are few and far between – the focus is on adapting to this new “normal”.

We sat down with Mark Cunningham, the Global Development Officer at Smoke’s Poutinerie, to get a franchisor’s perspective on operating a global franchise business in a global pandemic.

You can watch the full video interview here, or read a summary here.

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Intellectual Property

The new age brand strategy: Trends, opportunities and challenges

The turn of the decade has been eventful, to say the least. The global crisis has threatened all we once took for granted, and radically changed the way we as individuals live, work and play. For many businesses, it has also been a struggle to stay afloat. Although some may lament the mass retail apocalypse caused by the pandemic, this new climate has equally revealed opportunities to reinvent the brand by capitalising on current innovations and trends.

Read more >

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Product Compliance & Liability

Pass the mustard: Incorrect advice found in a newspaper regarding a horseradish herbal remedy is not a "defective product" under the EU Product Liability Directive (AG's opinion)

An Austrian case, being considered by the Court of Justice of the EU (CJEU), has been reviewed by Advocate General Hogan (AG) – who has given his opinion that inaccurate health advice in a hardcopy newspaper was not a defective product under the Product Liability Directive (85/374/EEC) (PLD).

The PLD contains a strict liability regime for persons that suffer personal injury or damage to non-commercial property as a result of defective products. The PLD is implemented into English law by the Consumer Protection Act 1987 (CPA) and the CPA continues to apply in respect of the UK’s strict liability regime (even though the UK has now left the EU). This opinion, and the CJEU’s forthcoming subsequent decision, may provide a useful indication of how an English court will interpret the meaning of a ‘product’ under the CPA should a similar claim arise here.

Read more >

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Restructuring & Insolvency

UK: Softening the cliff-edge - what next for COVID-19 related debt recovery

Since COVID-19 restrictions on businesses were first imposed in March 2020, the UK Government has repeatedly extended their schemes to protect debtors from both insolvency and property enforcement action by their creditors. The Government has now launched a consultation on what should come next when those schemes are scheduled to expire on 30 June 2021.

Read more >

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Tax

UK: Logistics, fulfilment and VAT

Despite the challenges posed by Brexit and COVID-19, there has been an increase in interest in the urban warehousing market in response to an increased demand for storage space. This presents major opportunities for the logistics sector, and investors in logistics and industrial real estate are alert to the possibilities. This article highlights the impact of some fundamental post-Brexit UK VAT developments, which may increase interest in warehouse fulfilment offerings but will also bring new responsibilities.

Read more >

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News & Events

We are delighted to announce our firm's best results ever in the Legal 500 EMEA 2021 directory

Bird & Bird has been recognised as a top-tier firm in 44 practice areas and is recommended in 112 more, including:

Retail (top tier in Italy and Spain; ranked in the Netherlands), Luxury Goods (ranked in Italy), Food (top tier in Belgium; ranked in Italy, Spain and the Netherlands), and EU Regulatory: Food (ranked in Belgium).

Many thanks to our clients who have provided feedback and helped us to achieve these rankings.

Read more >

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Have you seen our new videos?

We have recently created three videos to provide a snapshot of our Retail & Consumer sub-sector expertise. Click on the links to watch our videos for the Food & Beverage; Luxury, Fashion & Retail; and Hotels, Hospitality & Leisure sectors.