Talking Shop November 2021
Written By
Partner
UK
I'm the global head of our International Retail & Consumer sector group. As a partner in our international Commercial group in London, I work primarily with retail & consumer focussed businesses on their domestic and international growth and expansion strategies.
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Welcome to the November 2021 edition of our Retail & Consumer news round-up
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 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:
- Competition and Consumer Law
- Corporate
- Data and Cybersecurity
- Employment
- Intellectual Property
- Payment Services
- Tax
- News & Events
Competition and Consumer Law
Denmark: Infringing competition law is no child's play - significant fines for RPM in Denmark
A Danish company producing clothes, furniture and other products for children has accepted to pay a fine of DKK 1,800,000 (EUR 240,000) for infringement of the Danish Competition Act’s ban on resale price maintenance. In addition, a member of management of the company has accepted to pay a personal fine of DKK 100,000 (EUR 14,000).
The violation of the competition rules took place over a period from 2018 to 2020 in which the company required a reseller to adhere to the recommended resale price preventing the provision of any rebates or discounts. Following an investigation, the Danish Competition and Consumer Authority handed over the case to the State Prosecutor for Serious Economic and International Crime in order for them to initiate criminal proceedings.
The Netherlands: Dutch regulator continues its battle against misleading sustainability claims
The Netherlands Authority for Consumers and Markets (ACM) has recently announced that it will further investigate six companies in the clothing sector because of possible misleading practices concerning sustainability claims.
In May 2021, the ACM contacted over 170 businesses in three different sectors of the economy – energy, dairy products and clothing – and urged them to critically evaluate whether their sustainability claims were accurate, clear and sufficiently substantiated. The Dutch regulator subsequently launched market investigations in those sectors, and the results of the investigation into sustainability claims made by ten major clothing companies are the first to be made public, although on a no-name basis.
Poland: UOKiK investigates online platforms and popular influencers
Last month UOKiK announced several enforcement actions concerning online platforms and Internet celebrities active in the field of influencer marketing.
At first, UOKiK presented its investigation into the advertising practices of influencers active on various social media. UOKiK will examine relations of popular influencers with advertising agencies and advertisers. UOKiK will check if the advertising content is labelled at all, and if so – if it is clear enough or only visible, for example, after scrolling the page or hidden under some shortcut. UOKiK is also planning to verify whether not disclosing the promotional character of some content is attributable to influencers or advertisers that organise promotional campaigns.
Paid promotion of products or services that do not show that presented content is sponsored violates the ban on surreptitious advertising. Such practice may constitute an unfair market practice and, in some cases, an act of unfair competition. UOKiK also announced its intention to develop guidelines for influencers advertising content on social media.
UK: Reforming competition and consumer policy
It’s been at least two years in the making following the publication of Lord Tyrie’s letter of 2019 and the Penrose report of 2021, but finally the proposals for reforming UK competition policy, consumer rights and consumer law enforcement were released for consultation in July 2021 by the Department for Business, Energy, & Industrial Strategy (“BEIS”). This was done in parallel with the release of the consultation concerning the new pro-competition regime for digital markets.
This article focuses on the consultation relating to the proposed changes in respect of UK competition policy, consumer rights and consumer law enforcement.
UK: Competitive Edge the Podcast – the UK’s Green Claims Code
In Competitive Edge – The Podcast, we dissect topical competition law issues to help you understand how they may affect your business.
This podcast episode explores the UK’s Green Claims Code, which sets out the six guiding principles any businesses who make environmental claims need to comply with. It also touches on how this fits in with the CMA’s other work, online platform moderation, and the challenges we foresee for businesses complying with the Code.
Corporate
Global: It’s not all about the money - how do luxury companies compete with Private Equity and Special Purchase Acquisition Companies when looking to acquire founder-owned luxury businesses?
The shift to digitalisation and concentration of winning brands, against a background of unprecedented government cash injections into the global economy, has created a pressure-cooker environment in the luxury M&A market. There are a lot of good reasons to make acquisitions, and plenty of cash to fund them. Headline deals in this market environment include LVMH’s $15.8 billion acquisition of Tiffany and Moncler’s acquisition of Stone Island.
Data and Cybersecurity
Australia: Privacy overhaul on the horizon
In Australia, extensive privacy reforms have now been canvassed in more detail than previously, and a Bill proposing a privacy code for certain online businesses has been released. If implemented, these changes will have a fundamental impact on the reach, enforcement risk and effect of Australian privacy laws. It is important for entities which carry on business in Australia to consider the proposed changes carefully so that any unacceptable practical implications can be addressed before the laws are finalised and implemented. Submissions will be accepted until 10 January 2022.
Australia: Reforms to the Security of Critical Infrastructure Act 2018 (Cth) passed
Organisations across multiple sectors need to start preparing for changes to cybersecurity regulations contained in the Security of Critical Infrastructure Act 2018 (Cth). Recent incidents such as the shutdown of US Colonial Pipeline indicate that critical infrastructure assets are a vulnerable and attractive target for cyber-attacks, particularly as threats to such assets are evolving in a post-COVID world. To address this potential vulnerability, on 22 November 2021, the Government passed the Security Legislation Amendment (Critical Infrastructure) Bill 2021, which amends the Security of Critical Infrastructure Act 2018 (Cth) to impose various cybersecurity obligations on organisations responsible for critical infrastructure assets. The organisations to which the amendments apply are varied and from multiple sectors, including the food and grocery sectors.
Employment
Global: The great resignation - stemming the tide
Media articles and boardrooms are full of talk of the “great resignation” – but why is it happening now, and what practical steps can businesses take to address it?
The trend undoubtedly impacts all parts of the economy, from healthcare to retail, and the phenomenon is connected to other related issues, for example the “Striketober” that hit businesses in the US last month. This article looks at some of causes of this phenomenon, the issues employers face as a result and how they can manage them effectively, with a focus on office-based roles.
Intellectual Property
Singapore: The New Copyright Act - in force from 21 November 2021
A raft of changes to the copyright regime have been introduced on 21 November 2021 with the new Copyright Act 2021 coming into force. The changes represent a major overhaul of the old Copyright Act, with the reordering and rewriting of the provisions for better clarity; adoption of a principle-based formulation so the law can better adapt to technological changes; and the introduction of new rights and exceptions to better balance between the rights of creators, copyright owners and users.
Payment Services
UK: The PSR’s final report into the card-acquiring market
On 3 November 2021, the PSR published its final report into the card-acquiring market review. In summary, the PSR concluded that the supply of card-acquiring services does not work well for small and medium-sized merchants and large merchants with an annual card turnover up to £50 million. The PSR reported merchants with an annual turnover between £15,000 to £50million, served by the five largest acquirers “got little or no pass-through of the Interchange Fee Regulation” savings which capped consumer credit cards at 0.3%, and consumer debit and prepaid cards at 0.2%. The focus of the market review was card-acquiring services for Visa-branded and Mastercard-branded transactions.
Tax
UK: Plastic packaging tax alert – prepare for April 2022
A new green tax on plastic packing will come into force in the UK from 1 April 2022. The Plastic Packaging Tax is targeted at plastic packaging manufactured in or imported to the UK. This will have a significant impact on retail and consumer supply chains affecting an estimated 20,000 UK manufacturers, producers and importers of plastic packaging, as well as their business customers, fulfilment houses and online marketplaces.
News & Events
We contribute to the Global Legal Post’s first comparative guide to fashion law
Members of Bird & Bird’s Luxury, Fashion & Retail team have been involved in the first of a new series of Law Over Border guides. The online Fashion Law guide provides answers and insights into the law around the business of fashion in 18 key jurisdictions around the world.
As authors for the Spain (David Fuentes, José Miguel Lissén), Hong Kong (Hank Leung, Harry Wong) and Singapore (Lorraine Tay, Penelope Ng) chapters, our experts answer a series of questions to guide readers through the legal regimes of these jurisdictions, looking at areas such as the effective protection of brands, the rules around e-commerce and marketing, and navigating sustainability guidelines.
The online guide, available here, allows those working in the fashion industry to quickly compare the legal frameworks of each jurisdiction.
We advise Costa on landmark deal with M&S
We have advised Costa Coffee (Costa) on a transaction with Marks & Spencer (M&S) to allow Costa to serve M&S food throughout the UK. By serving M&S food, Costa aims to drive more footfall into its stores by improving Costa’s current food range and M&S will gain an entirely new network to increase its food sales. The deal marks months of intense and complex legal negotiations on various agreements.
We advise Re:Nourish on its £2m funding round to finance global growth ambitions
Bird & Bird’s Corporate team has advised on-the-go soup brand Re:Nourish on securing a £2million investment as part of its global growth strategy.
The series A funding round will be used to further expand the company and its products in the Middle East, Far East and other territories. The £2m investment builds on a prior seed funding round of £800,000 in September 2020. In addition to original backer Doehler Ventures, two new investors participated in the series A fundraising.
We advise OTA Insight on its $80 million Series B financing round led by Spectrum Equity
Bird & Bird has advised longstanding client, OTA Insight, a global leader in cloud-based hospitality business intelligence, on its $80 million Series B financing round led by Spectrum Equity. Spectrum Equity joins existing OTA Insight investors Eight Roads, F-Prime Capital and Highgate Technology Ventures.
The platform has gained the attention of investors as it has adapted to changing demands due to the pandemic with the plan to use this funding to drive more business in new and existing jurisdictions in what is still considered an untapped market.
Welltodo launches 2022 Consumer Wellness Trends Report
The report explores the eight key consumer trends that Welltodo predicts will impact the trajectory of the wellness landscape, and the world at large, over the coming years.
Uncovering and interpreting insights ranging from how 18+ months of a pandemic has reinvented and reaffirmed our relationship with wellness, to how expectations around purpose, inclusivity and 'do-it-yourself' healthcare are paving the way for radical innovation, the report sheds light on how you can better leverage the pockets of opportunity that exist and thrive in this new world. Find out more about the report here.
We have partnered with leading wellness industry resource, Welltodo, for a number of years. Find out more about Bird & Bird's Wellness team here.
Webinar: Product Design
2 December 2021, 11.00 - 12.00 GMT
Our international team will guide you through a variety of hot topics from around the world, including:
- Designs in China: an overview of how to protect your designs in China
- The Interaction between designs law and other IP rights: how to utilise overlapping rights to your advantage
- Managing product launches: first disclosure of designs and why it matters
- Updates on important design decisions from key European jurisdictions
We’ll aim to give you practical takeaways and the opportunity to ask any burning questions!
