Talking Shop summer 2019

Welcome to the Summer 2019 edition of our Retail & Consumer monthly 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 also find details of some of our upcoming events, which we think might be of interest to you and your team. One of our most exciting upcoming events is the Retail & Consumer Annual Update, which takes place in our London office on 9 October. The programme will feature a range of commercial and legal topics impacting all parts of the sector across the supply chain, as well as a chance to network with peers and meet the brands participating in our exhibitor showcase - many of whom will be providing demos and samples of their products. Please click here to find out more and register for the event.

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

Advertising & Marketing

Is it all going down the drain? The risks and opportunities of making environmental-related marketing claims

In June 2019, the Federal Court of Australia handed down its decision in Australian Competition and Consumer Commission v Kimberly-Clark Australia Pty Ltd in favour of Kimberly-Clark Australia Pty Ltd.

The case related to action by the Australian competition and consumer regulator (ACCC) against Kimberly-Clark for alleged misleading and deceptive conduct in the advertising and marketing of its Kleenex Cottonelle Flushable Cleaning Cloths (Flushable Wipes). This decision has since been appealed by the ACCC.

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Online search advertising restrictions and competition law: some recent lessons

The growth of e-commerce over the last decade has had a significant impact on most if not all retail markets.

Trends like the increased importance of online sales, price transparency and the emergence of new market players such as online platforms, significantly affected the distribution and pricing strategies of both manufacturers and retailers, not only in relation to inter-brand but also intra-brand competition. It translated into novel forms of restrictions, such as bidding restrictions in online search advertising.

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European medicines agency settles dispute with Canary Wharf Group over Brexit frustration challenge

In February this year, the English High Court dismissed the European Medicines Agency (EMA) claim that if and when Brexit occurred, it would be an event that would frustrate the 25 year lease it had taken out with the Canary Wharf Group (CWG) for its London Headquarters.

The court held that Brexit would not "frustrate" the contract and the EMA was unable to escape the lease. The decision was welcomed by many landlords who feared that the case risked opening the floodgates to companies seeking to abandon multi-million-pound property contracts because of Brexit if the EMA was successful.

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Mitigating risk: are your commercial contracts Brexit ready?

At the time of writing, it is still unclear when the UK will leave the EU. This political uncertainty has left businesses, which trade with the UK and the EU, unable to plan for their future with any confidence. Negotiating commercial agreements during times of political uncertainty can give rise to new challenges and it is important to understand what these are and how to mitigate the risks that may be associated with them.

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Competition & EU Law

Update on the regulation of digital platforms in Australia and the UK

Digital search engines, social media platforms and other digital content aggregation platforms have come under increasing global scrutiny in recent times. We are at a critical point in understanding the impact global digital search engines and platforms have on content aggregation, markets and society more generally. Regulators around the globe are grappling with how to ensure that both competition law tools and regulatory policy effectively address the market power of online platforms and are focused and relevant in this rapidly evolving digital age.

The latest policy and strategy reviews in the UK and the recent market inquiry in Australia will likely be springboards for tighter competition law enforcement and regulation (including co-regulation via codes of conduct), to ensure that the benefits to society those platforms and search engines bring are not at the expense of consumer welfare, high quality news and journalism and market driven innovation.

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The proposed Ecodesign-regulations and "the right to repair"

Environmental protection is receiving more and more attention around the globe, and European legislation is also increasingly focusing on the protection of the environment. The European Commission (the Commission) is currently working on twelve draft Ecodesign-regulations which are aimed at ecodesign requirements for various so-called energy-consuming products (the Ecodesign-regulations) . There is, for example, an Ecodesign-regulation for display screens, washing machines, and dishwashers.

With these Ecodesign-regulations, the Commission focuses, among other things, on the reparability of products in order to exploit a product's full potential. The Commission aims to do this by introducing a set of repair requirements which should be met by manufacturers and importers by April 2021, in order to be able to keep marketing their products in the European Union (EU).

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CJEU Fashion ID case: thumbs down to Facebook's "Like" feature

The decision (case C-210/16) deals mainly with the issue of “joint controllership” between Facebook and website operators using Facebook's 'Like' button on their website. The highest EU court decided that the operator of the website can be a controller jointly with Facebook in respect of the collection and transmission to Facebook of the personal data of visitors to the website, but not in respect of subsequent processing.

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International assignments: Expanding horizons and avoiding roadblocks

In the current political climate, and with increasing pressure to tighten immigration controls, there has been speculation about whether workplaces would enter an era of "deglobalisation," with less desire and opportunity for international mobility. On the other hand, we are in an era of change and adaptation - businesses are expected to keep up with changing work culture and attitudes as well as technological development, and to embrace flexible and non-conventional methods of working. Many employers find themselves under significant pressure to accommodate employees' plans and desires to live in and explore other parts of the world.

Read more >

News and Events

Retail & Consumer Annual Update

Please save the date for our third Retail & Consumer Annual Update, taking place on 9 October in London.
The programme will include a range of commercial and legal topics impacting all parts of the sector across the supply chain, and an exhibition space featuring a number of brands showcasing and demonstrating their products.

Please click here to register for the event.

English Contract Law for European Retail & Consumer Businesses: illustrating concepts and explaining jargon

This series of seminars, held in English, provides international consumer-facing businesses operating in Europe with essential know-how and tools for English contract law.

The seminars have been running across a number of our European offices, with three more locations still to come in 2019. Please get in touch if you would like to attend.

Amsterdam:28 March
Paris:17 April
Milan:8 May
Rome:9 May
Madrid:28 May
Copenhagen:13 June
London: 25 June
Helsinki:17 September
Stockholm:5 November

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