Talking Shop February 2023
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 February 2023 edition of Talking Shop.
Welcome to the February 2023 edition of Talking Shop. In this edition we make predictions for corporate activity in the thriving luxury goods resale and rental space, and explore topics including influencer marketing regulations, green claims, and much more.
Please get in touch or visit our webpage for more information about Bird & Bird's Retail & Consumer Group.
In this newsletter:
- Spotlight on Corporate: 2023 Predictions
- Competition
- Influencer Marketing
- Intellectual Property
- Payment Services
- Sustainability & Green Claims
- News & Events
Spotlight on Corporate: 2023 Predictions
Retail & Consumer Corporate Activity: 2023 Predictions
We take a look at how current hot trends are driving corporate activity and creating opportunities and risks in one part of the market: the thriving luxury goods resale and rental space.
Competition
Belgium: Competition Authority reimposes fine on Caudalie group for active and passive sales restrictions and retail price maintenance
On 18 January 2023, the Belgian Competition Authority reimposed a fine of almost EUR 860,000 on the companies of the Caudalie group for having imposed minimum retail prices and passive sales restrictions on their selective distributors. The case goes back to 2018, when the Belgian and French competition authorities carried out dawn raids at Caudalie, which culminated in a fining decision by the BCA in 2021.
Hungary: Investigating the food sector
Last year, the Hungarian Competition Authority commenced a series of consultations to identify the markets most impacted by competition law violations and to raise awareness among businesses of its significance. In the middle of January 2023, the GVH launched an investigation into the practices of the food retail chain sector, analysing market signals to assess if any violations of competition regulations or distortions of competition may be driving the noticeable rise in food prices.
Influencer Marketing
Australia: Regulators are cleaning up influencer misconduct on social media
Any business that engages influencers to promote their products or services to Australian consumers on social media should be alert to the commencement of the Australian Competition and Consumer Commission’s social media sweep to identify, and take action against, misleading testimonials and influencer endorsements. This directive falls in line with the ACCC’s compliance and enforcement priorities for 2022/2023 and its broad mission to target deceptive marketing in the social media economy.
France: Draft bills on commercial practices of influencers
Since November 2022, four different bills have been tabled in the French Parliament, and a public consultation has been launched by the French government to regulate influencer practices. These initiatives are in line with the fight of the French Directorate General for Competition, Consumption and Fraud Control (DGCCRF), which estimated earlier this year that 60% of influencers did not comply with the current legislation on advertising.
One of the four proposals aims to impose a guide for influencers and platforms that will have to comply with these new rules. Among the key measures proposed:
- Influencers would be prohibited from promoting certain products (e.g. pharmaceutical products, financial investments and digital assets) or under conditions (e.g. prohibition of publicity to minors for gambling);
- Platforms will have to ensure that their users comply with these obligations, and will have to report illegal publications to the authorities and block certain content.
The draft bills will be discussed at the end of March before the French Parliament. Watch the space for future developments!
Ireland: Policing misleading adverts by influencers
With a new report on social media marketing in hand, Ireland’s consumer protection regulatory authority is focused on addressing misleading advertising by influencers. Commissioned by the Competition and Consumer Protection Commission, the report – Online Behaviour; Influencer Marketing – examined Irish consumer engagement with social media platforms and influencers. The research showed that influencer behaviour has a dramatic effect on consumer purchasing.
Intellectual Property
Europe: Lessons learned from the BIG MAC - how to prevent trademark revocation for non-use
The EUIPO Cancellation Division ruled against the owner’s BIG MAC trademark registration, stating it should be revoked for non-use. This outcome was surprising given the BIG MAC burger is one of the most popular and well-known products in the fast-food market. On 14 December 2022,the EUIPO board of appeal departed from the ruling, granting revocation on the basis of non-use by partially upholding the appeal filed by the owner.
UK: M&S all lit up in successful liqueur bottle UK registered design case
In a successful M&S bottle design case against Aldi, the Intellectual Property Enterprise Court ruled that Aldi’s bottles were infringing four of its registered designs.
UK: Lifestyle Equities v Amazon takes “targeting” to the Supreme Court – online retail platforms and brand owners take note!
Over the last couple of years, there have been a number of cases which have made brand owners more aware of how their products make their way around the world, where they are being sold to and from, and to whom. The latest case in the UK is between a brand owner, Lifestyle Equities, and an online marketplace giant, Amazon.
Payment Statements
UK: FCA publishes Dear CEO letter to payments firms on implementing the Consumer Duty
On 21 February 2023, the Financial Conduct Authority issued a Dear CEO Letter to Payment Institutions, Electronic Money Institutions and Registered Account Information Service Providers to help them implement and embed the Consumer Duty effectively. In relation to payments firms the Consumer Duty applies to: products and services offered to retail customers, including micro-enterprises and small charities with an annual turnover of less than £1 million; and firms who determine or have a material influence over consumer outcomes and not only to those with a direct customer relationship.
Sustainability & Green Claims
Italy: Extended Producer Responsibility in the textile supply chain
On 2 February 2023, the Ministry of the Environment and Energy Security announced that it had prepared – together with the Ministry of Enterprise and “Made in Italy” – a draft Decree identifying the new obligations to be fulfilled by producers in the textile sector with regard to the design, production, disposal, and recycling of textiles. A consultation phase has now been launched with key stakeholders in the sector, who will have to submit their comments by 3 March 2023.
Sweden: Court forbids “net-zero” claims based on climate compensation
The Swedish Marketing Act contains measures to uphold good practices in advertising. Such practices mean that advertising must be factual, truthful, and not misleading to the consumer. This is also applicable to the use of green claims in advertising. In 2019, a Swedish dairy producer introduced a clearly visible green claim on the front and back of some of their product packaging for dairy. The Swedish Market Court found that the green claim on the product was misleading for several reasons.
The Netherlands: Dutch Advertising Code Foundation publishes (new) Code for Sustainability Claims
On 1 February 2023, the new Dutch Sustainability Claims Code (Code voor Duurzaamheidsreclame, CDR) entered into force and replaces the Dutch Environmental Advertising Code (Milieu Reclame Code, MRC). While CDR responds to a need from companies and advertisers for clearer rules on the use of sustainability claims, it also appears to have been prompted by an increase in complaints related to sustainability claims and the development of new legislation and guidance in this area. In short, the CDR regulates claims related to environmental and/or ethical aspects of products, services and activities.
UK: Greenwashing in the fast-moving consumer goods sector comes under the spotlight
As litigation based on claims of greenwashing steadily increases, examination of consumer facing businesses and their ESG statements continues to rise. On 26 January, the UK’s Competition and Markets Authority announced that it was expanding its scrutiny of greenwashing claims into the fast-moving consumer goods sector. The investigation will focus on essential products that consumers use on a daily basis and regularly repurchase, such as dishwashing items and toilet products of which 91% and 100%, respectively, market themselves as ‘green’ or ‘environmentally friendly’.
News & Events
Our Food & Beverage team partners with Swedish food industry network, Livsmedel I Fokus, on their Impact Maker Award
This year Bird & Bird are proud partners and members of the judging panel for the Impact Maker Award, together with Lantmännen, Paulig Group, Vinnova, and Livsmedel i fokus. The prestigious award is given to the most innovative startups within the food and beverage sector in Sweden.
To compete for the award the startup has to be unique, have growth and profitability potential, be innovative, have a clear business model and contribute to the UN agenda 2030. We are excited to start the judging process and learn more about the future of the Swedish food & beverage industry.
