Talking Shop March 2025

This edition includes updates on influencer marketing and online promotions in France; an overview of the most important contents of the new European Regulation on Packaging and Packaging Waste; a summary of the recent speech given by Sarah Cardell, CEO of the UK CMA, about the CMA's approach to how it will enforce its powers under the Digital Markets, Competition and Consumers Act; and much more!

In the News & Events section you can find information about two upcoming events taking place in our London office on the EU employment landscape and the future of competition law enforcement in the UK. 

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

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In this edition:

• Advertising & Marketing
• Competition & Consumer Law
• Commercial Agents Regulations
• ESG
• Privacy & Online Safety
• News & Events

Advertising & Marketing

France: Influencers and Brand Criticism - Between Freedom of Expression and Legal Responsibility

Today, nearly 49% of consumers report being influenced by social media in their online purchasing decisions. This statistic highlights the crucial role that influencers play in the digital economy. However, the growing closeness between brands and influencers raises the question of the limits of criticism. When an influencer expresses a negative opinion, the boundary between freedom of expression and harm to a brand’s reputation can become blurred, necessitating appropriate regulation to protect the interests of both parties.

Read the full article here

France: Online Promotions - Towards a Clearer Legal Framework?

Online promotions, draws, sweepstakes and lotteries have become essential marketing tools for brands. However, their legal framework in France remains unclear, leading to potentially abusive practices. Presented to the French Senate on March 6, 2025, the proposed law n° 24-412 aims to bring greater clarity and security to online promotions, benefiting both businesses and consumers.

Read the full article here 

Competition & Consumer Law

Australia: Supermarkets and Suppliers Beware - The Food and Grocery Code of Conduct Has Arrived and Will Take Effect on 1 April 2025

On 12 December 2024, the Australian Government introduced a new Food and Grocery Code of Conduct, following an independent review of the Code in 2023 -2024. The purpose of the Code is to address bargaining power imbalances between Australian supermarket retailers and their suppliers, particularly smaller suppliers. The Code is mandatory and will come into full operation on 1 April 2025. We outline the changes that businesses should look out for. 

Australia: Shedding Light on Dark Patterns - Clever Marketing or Unfair Trading Practice?

There is no specific prohibition on dark patterns under Australian law, meaning enforcement is only possible when the use of dark patterns is egregious enough to meet the “misleading or deceptive” or “unconscionable” thresholds under the existing provisions of the Australian Consumer Law. In November 2024, Treasury published its consultation paper on the Government’s proposal to prohibit unfair trading practices under the Australian Consumer Law. This article looks at the proposed reforms and to what extent they will ban the use of dark patterns in online trading, and what businesses who sell goods or services online can do to ensure they are prepared.

Germany: German Courts Have Repeatedly Found Unilateral Price Increases or Service Changes in B2C Subscription Contracts to be Unlawful

It is a common practice for providers of B2C online subscriptions to unilaterally increase their prices or change their services in existing customer contracts. The corresponding clauses often do not uphold before German courts. Two recent rulings underline once again that the topic is being closely monitored by German consumer watchdogs.

Read the full article here

UK: CMA Previews New Approach Ahead of Publication of Guidance and Implementation of Consumer Enforcement Aspects of DMCCA on 6 April

In a speech to the techUK Tech Policy Conference 2025, Sarah Cardell, CEO of the Competition and Markets Authority, previewed the CMA’s new approach to how it will enforce its powers under the Digital Markets, Competition and Consumers Act. In this short update we summarise what this new approach will be and what the next steps should be for businesses affected by the changes.

Read the full article here

Commercial Agents Regulations

UK: The Commercial Agents Regulations Are Here to Stay

In May 2024 the then UK Government launched a consultation on whether to repeal the Commercial Agents (Council Directive) Regulations 1993 (“CARs”), an instrument of retained EU law granting additional rights to commercial agents. On 13 February 2025 the current government announced that the CARs would remain in force without amendment. From the consultation responses it appears that the majority of both agents and principles will welcome the decision to leave the CARs in place, as this ensures consistency for those navigating these complex business arrangements. 

Read the full article here

ESG

EU: The new European Regulation on Packaging and Packaging Waste

On January 22 2025, the new European Regulation on Packaging and Packaging Waste (EU 2025/40)  was published in the Official Journal of the EU. The Regulation affects manufacturers and importers, as well as distributors and fulfilment service providers who supply packaging or packaged products in the EU or who are involved in their recycling. It contains requirements relating to the sustainable design and labelling of packaging, sets binding re-use targets and refill obligations, introduces deposit systems and bans certain packaging formats.

Read the full article here

Privacy & Online Safety

Australia: Face Value - Retailers Must Carefully Manage Privacy Risks Related to Facial Recognition Technology

In recent years, the increased use of security technologies, such as facial recognition technology in retail settings, has raised ethical questions and privacy risks. On 28 February 2025, during her speech at the Retail Risk conference, the Australian Privacy Commissioner reminded retailers to strike a balance between achieving security and meeting privacy obligations when using technologies. Referring to her recent determination against Bunnings Group Limited, which is currently the subject of an appeal in the Administrative Review Tribunal, the Commissioner emphasised the four key privacy principles retailers must comply with when adopting security technologies, which we break down in this alert.

Read the full article here

France: Children and Digital Technology - Balancing Protection and Rights

Children are increasingly immersed in digital technology. Today, one in three internet users worldwide is a child, highlighting significant challenges regarding personal data protection and the safeguarding of minors’ rights. In the US, each Member State sets the age at which minors can independently consent to the processing of their personal data. In France, this age is 15. However, minors under 18 do not have the legal capacity in France to enter into contracts, except for routine acts of daily life. The challenge lies in achieving a balance between ensuring minors' protection (by platforms or legal representatives) and respecting their rights as individuals.

Read the full article here

News & Events

In-Person Event: Employment & the EU - Tackling Compliance in a Changing Regulatory Environment

30 April, 08.30 BST, London

The global employment landscape continues to evolve against the backdrop of a change in government in the US, a fast-moving EU legislative agenda and substantial employment law reforms in the UK. Given the increasing number of regulations and directives emanating from the EU, many employers with a global workforce will be impacted by these developments and compliance has once again emerged at a key priority for HR and in-house employment teams alike.

Our International Employment experts join together to deep dive into the legal and practical aspects of the EU Pay Transparency Directive as well as considering the impact of other upcoming EU Directives and reflecting on those that have already been implemented. In light of developments in the US, they will also provide critical insights on the direction of travel for DEI outside of the US, alongside practical tips on how legal technology can help companies prepare for some of the upcoming compliance challenges ahead.

RSVP here

In-Person Event: The Future of Competition Law Enforcement in the UK

15 May, 15.30 BST, London

We are delighted to invite you to our annual in-person competition law networking seminar, an engaging and informative session on the latest cutting-edge competition law issues.
Our panel of guest speakers include Tamara Todorovic (Director, Competition and Markets Authority), Alex Olive (General Counsel, Payment Systems Regulator), Katie Curry (Partner, RBB Economics and Cintia Aguilar Flores (Legal Counsel, Shel.

We will be discussing topical issues on UK competition law enforcement (such as AI, algorithmic collusion, entry into force of the DMCCA and the current political landscape), reflecting on the last few months and looking to the year ahead. The discussion will take place under Chatham House Rules.

RSVP here