Talking Shop September 2021

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:

• Spotlight on...
• Competition
• Data Protection
• Dispute Resolution
• Franchising
• Intellectual Property
• Payment Services
• Trade & Customs
• News & Events

Spotlight on...

Brexit: Product compliance and liability

Whilst the UK exited the EU on 31st January 2020, the transition period provided for by the Withdrawal Agreement, during which time EU law continued to apply in the UK, only ended on 31st December 2020. EU law ceased to apply in the UK from that point. However, the European Union (Withdrawal) Act 2018 served to convert EU law as it stood at the end of the transition period into domestic UK law and preserve laws made in the UK to implement EU obligations. It also created temporary powers to make secondary legislation to enable corrections to be made to the laws that would otherwise no longer operate appropriately after the UK has left, so that the UK legal system continues to function correctly outside the EU.

This article briefly sets out the implications of Brexit on product compliance/regulation and liability, now that the transition period has ended. The impact of Brexit on this regulatory regime is of considerable concern for both UK manufacturers and EU manufacturers alike. This is particularly so given that, in many areas, product development and manufacturing lead times are long, and manufacturers are naturally keen to avoid costly redesigns or re-labelling.

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COVID-19: Vaccine guidance

Vaccination is now a key tool in many jurisdictions as part of government strategies to gain control over the spread of the virus and to allow a return to ‘normal’. That said, vaccination remains a contentious topic, and the question of mandatory v. voluntary vaccination remains a live matter of debate. Added to this is the desire of many governments to use vaccination status as a measure or condition of opening up society to function as normal once again, which is a similarly sensitive matter.

To address some of the burning questions on employers' minds, we have created an updated and revised COVID-19 chart which has been developed to help employers prioritise and understand the key issues through a traffic light system, and to provide detailed responses to some pressing questions.

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Lessons from the top: Fireside chat with Vinod Mahboobani, Chief Legal Officer of KFC Global and Pizza Hut International

The Association of Corporate Counsel Singapore and Bird & Bird ATMD asked Vinod Mahboobani to share his life lessons and experiences from trainee lawyer to globally successful general counsel – all in 60 minutes. Here are the key takeaways from the inspiring fireside chat.

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Competition

Europe: NextGenerationEU funds and national recovery and resilience plans

The European Commission has launched its largest package of economic stimulus measures in order to speed up the recovery of EU economies damaged as a result of the COVID-19 pandemic, the so-called NextGenerationEU.

The NextGenerationEU programme, with its centrepiece the “Recovery and Resilience Facility”, involves an investment of more than €750 billion aimed at building a “greener, more digital and more resilient” Europe. The large-scale financial support offered by this new programme represents a unique opportunity for undertakings seeking to benefit from public support to achieve their goals and to carry out new projects in line with the NextGenerationEU objectives. The flip side of the coin is that recipient companies need to be very mindful that the European State aid and competition rules come with important compliance obligations that need to be observed to avoid possible later recovery of aid.

Data Protection

China: The dawn of a new era! The Personal Information Protection Law and Data Security Law

The Personal Information Protection Law of the People’s Republic of China (“PIPL”) was officially adopted by the National People’s Congress Standing Committee after its third reading. China’s Data Security Law (“DSL") will take effect on the 1 September and the PIPL will take effect on the 1 November 2021. With significant administrative fines linked to non-compliance with the PIPL and the possibility of being prohibited from assuming managerial positions in relevant organisations for directly responsible persons, it’s vital to get ahead and stay compliant before full implementation.

We recently ran a webinar to look at key elements of this first piece of comprehensive and dedicated personal information protection law in China. Experts in our China Privacy and Data Protection team broke down the multiple chapters and articles in a digestible format to help you understand, prepare and stay ahead of the game as the implementation date draws closer. Watch the webinar recording here.

You can also read a summary of the latest developments in cybersecurity and data protection in China, with a focus on the regulatory, enforcement and industry developments, in our recent e-bulletin, available here.

Dispute Resolution

Finland: Collective Redress Directive aims to unify the fragmented class action legislation within the EU – what will change in Finland?

Today, multiple consumers may easily be affected by the same harmful conduct of a trader due to globalisation and digitalisation. As part of the European Commission’s New Deal for Consumers, the European Parliament passed the Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers on 24 November 2020. The Directive aims to improve the position of consumers within the EU by allowing consumer groups to initiate collective actions. Currently, the regulatory field of class actions within the EU is very fragmented. In this article, we examine the main changes the Collective Redress Directive will bring from the Finnish perspective.

Franchising

UAE: Franchising update

There is a strong history of international businesses expanding their brand through the franchise model in the United Arab Emirates. Due to the relative ease of doing business, and a Western friendly culture, the UAE is often seen as a “hub” for the Middle East region, and a starting point for expanding into surrounding countries such as the Kingdom of Saudi Arabia, Kuwait, Bahrain, Oman, and Qatar.

In this article, originally published in The Franchise Law Journal Summer 2021 by the American Bar Association, we explore some of the key considerations for businesses expanding into the UAE via franchising.

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Intellectual Property

Australia: New 12 month “grace period” introduced to Australian Designs legislation

On 30 August 2021, The Designs Amendment (Advisory Council on Intellectual Property Response) Bill 2020 (Bill) was passed by the Australian Parliament on. Amongst other changes the Bill effects to the Designs Act 2003 (the Designs Act), it finally introduces into Australian law a “grace period” for applicants, bringing the law in line with other jurisdictions which allow such a grace period.

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Europe: Tackling IP infringements in social media - EUIPO releases its Social Media Discussion Paper

The European Union Intellectual Property Office (EUIPO) released its Social Media Discussion Paper in June of this year, forming part of a broader attempt to address IP infringement activity on digital platforms. Focusing specifically on new and existing trends in using social media for IP infringement activities and good practices to address them, the discussion paper supplements EUIPO’s earlier report on monitoring and analysing social media in relation to IP infringement, and follows a similar publication by EUIPO on domain names compiled in March 2021.

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Payment Services

UK: Buy Now Pay Later – how does it work and is it regulated?

Buy Now Pay Later is a payment method which is increasingly popular with merchants and customers. This popularity has, however, led to a corresponding increase in scrutiny from UK regulators. This article explores how BNPL works, how it is currently regulated in the UK and the impact of impending regulation.

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Trade & Customs

Europe: The EU’s new trade agenda aims to achieve ‘open strategic autonomy’

As Brussels looks towards the autumn, the EU institutions are taking steps to implement a more assertive, green and sustainable trade agenda. It is a strategy that goes beyond EU trade policy’s more traditional role of removing barriers and ensuring market access, in favour of a more holistic approach with an emphasis on respect for the environment and sustainable development. This shift in focus is summed up in the new Brussels jargon as the “EU’s open strategic autonomy”, a term which indicates ambitions to cut dependence on the US and China, reshore production and nurture European industrial champions.

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News & Events

Our team hosts a panel session on sustainability during the Luxury Law Summit Europe, and is named Luxury Law Firm of the Year at the Luxury Law Awards 2021

Members of our Luxury, Fashion & Retail team recently attended the Luxury Law Summit Europe, which took place at the British Museum in London.

As sponsors of the Summit we were delighted to be part of a fantastic line-up of high profile speakers exploring global trends in luxury. Our panel session, titled “Sustainability, no longer a luxury”, was moderated by Karen Friebe, who was joined by Vincent Marot (Mandarin Oriental Hotel Group) and Ben Godon (Colliers). The panellists discussed how luxury businesses should be prioritising their environmental and social impact to meet consumer expectations and drive growth, and shared how they and those they work with are implementing sustainable policies and practices to re-shape the future of luxury.

The day ended on a high for the Bird & Bird team at the Luxury Law Awards, where we were thrilled to win the Luxury Law Firm of the Year Award in recognition of our leading expertise in this sector. The Awards are judged by ten individuals against a number of criteria, including evidence of legal expertise and innovation, team working, client satisfaction and a commitment to ESG. The judging panel commented on our team’s expertise in tech, our collaborative approach and ability to offer innovative solutions to our clients.

Our Retail & Consumer group includes experts in the luxury sector across each of our international offices. If you would like to speak to one of our team-members and find out more about our experience working with luxury businesses, please do get in touch. You can also watch a short video introducing our Luxury, Fashion & Retail team here.

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Webinar series: Green, sustainable and eco advertising 

We are hosting a series of webinars on green, sustainable and eco advertising. The webinars will be relevant to international businesses located across the globe, with each exploring one particular jurisdiction. We will look at the key issues multi-national businesses will need to consider when advertising in that jurisdiction, including national legislation and guidance regarding green and sustainable advertising. The first session took place earlier this week and focused on green advertising in Germany. The next two sessions will look at:

Green Advertising in the Netherlands
14 October, 16.00 CET

We will discuss the Dutch rules on green advertising, the possibilities for further cooperation in the field of sustainability, and the legal intricacies of upcycling.
RSVP here > 

Green Advertising in Sweden
26 October, 10.00 CET

We will discuss key issues to consider when making sustainability claims in advertising in Sweden, including national legislation and the Guidelines on sustainability claims from the Swedish Consumer Agency.
RSVP here > 

Webinar with Lexology: The European Commission updates its distribution regime - what you need to know
28 October, 13.00 - 14.00 CET

The EU Commission recently published its long-awaited draft Vertical Agreement Block Exemption Regulation (VBER) and accompanying guidelines. In this webinar, Competition law experts Pauline Kuipers, Jörg Witting and Ariane Le Strat will walk you through the changes and opportunities arising out of the new regime. The focus will be on how businesses can adapt their distribution agreements to seize opportunities under the new regime while remaining compliant with competition rules.

The speakers will also cover the possible divergences and synergies with the new UK regime on vertical agreements.

RSVP here >

We’re delighted to be collaborating with the Association of Spanish Franchisors on a series of webinars on “Internationalising your Franchise”. The webinars, held in English, will explore a number of international markets, including Australia, China, Italy and France.

We will guide you through the legislation and comment on upcoming changes in European competition legislation that will significantly affect franchises throughout Europe.

View the schedule and RSVP here >