Talking Shop February 2022

Welcome to the February 2022 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. In this edition we are pleased to include a guest article from Charlotte Kula-Przezwanski (Partner & Director of EMEA at Columbus Consulting) on logistics, supply chain, inventory, organisational structure and smart technology. 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: 

Guest Article

Is L.I.S.T on your 2022 plan?

Thank you to Charlotte Kula-Przezwanski (Partner & Director of EMEA at Columbus Consulting) for contributing this article.

At the back end of 2021, and hopefully coming out of the worst of COVID, what were your plans for 2022 and what did success look like? Have you committed to a fully integrated omni-channel experience? Are you planning on a digital transformation programme? We seem to have been talking “Channels” for a few years but the last two years in particular have accelerated the need to evolve. From a traditional bricks and mortar, to e-commerce, then to multi-channel where customers shopped in distinct but disconnected channels, to today’s fully integrated omni-channel shopping environment. At Columbus we have formulated the L.I.S.T. Our acronym for Logistics-Supply Chain, Inventory, Organisational Structure and Smart Technology. We believe these are the four foundational pillars to support an omni experience.

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Case Update

English Commercial Court judgment is a reminder not to bury onerous terms within standard Terms & Conditions even in B2B contracts

Many businesses contract using standard Terms & Conditions (STCs) because it is simple and minimises risk. However, the case of Blu-Sky Solutions Limited v Be Caring Limited [2021] EWHC 2619 (Comm) is an important reminder that businesses should revisit their contractual processes to ensure that any unduly onerous obligations within their STCs are fairly and reasonably drawn to their counterparty’s attention at the time the contract is signed. The judgment also considered whether the onerous term in question in the STCs was incorporated into the contract, and if so, was the term void because in effect it was a penalty rather than a charge to cover administrative expenses.

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Competition & Consumer Law

CNMC ends an investigation against the main food delivery platforms in Spain

In January 2022, the National Markets and Competition Commission (“CNMC”) published a decision agreeing to end the investigation against the main food delivery platforms operating in Spain: Just Eat, Deliveroo, Uber Eats and Glovo. This investigation was initiated due to the existence of exclusivity agreements with the restaurants which could have implied the implementation of vertical restrictions in violation of Art. 1 of the Spanish Competition Act.

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Dutch regulator launches follow-up review into green claims in the energy sector

The Dutch Authority for Consumers and Markets (ACM) has launched a follow-up investigation into two energy suppliers in relation to sustainability claims in the Netherlands. Sustainability is one of the ACM’s key priorities and various steps have already been taken to prevent misleading sustainability claims in the Netherlands. The ACM emphasized that clear, truthful and relevant claims will ensure consumers have sufficient information to take well informed decisions when purchasing products or services and will protect companies against unfair competition. This investigation is the second sector review that is carried out by the ACM, the first sector review being the review into the clothing sector. For this review both national and international companies are being investigated (see our article here). Similar action in the fashion retail sector is taking place in, inter alia, the UK (see our article here).

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Data Protection

New UK Standard Contractual Clauses for personal data transfers

On 2 February 2022, the UK’s new International Data Transfer Agreement (“IDTA”), and new International Data Transfer Addendum (the “UK Addendum”) to the European Commission’s new standard contractual clauses (the “new EU SCCs”) were laid before Parliament, along with related transitional provisions. The IDTA and the UK Addendum are essentially the “UK version” of the new EU SCCs. The IDTA and the UK Addendum are alternatives – in this article we explain when each is best used.

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APD v IAB: Transparency & Consent Framework changes ahead

On 2 February, the Belgian data protection authority (the “APD”) published its much-anticipated ruling relating to the Transparency & Consent Framework (the “TCF”), operated by IAB Europe. The TCF intends to provide a standardised method through which all stakeholders in the adtech ecosystem (publishers, vendors and, indirectly, advertisers) can technically communicate an end user’s choices and preferences as to how personal data relating to that user may be used. This includes obtaining and communicating a user’s informed consent to processing of such data for a number of predefined purposes.

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The Workforce of the Future series: Employers of record contingent workers heatmap

With the advent of the Coronavirus pandemic, the world of work was forced to implement new working structures overnight. Although some companies had been considering alternative models of work for some time, with the slow return to normality it is clear that these changes are now here to stay. We have developed a Heatmap providing an overview of the key risks and issues associated with using these employment structures in 19 countries across the world. We have considered the risks from a variety of angles including tax law, employment status, labour leasing, data privacy issues and the protection of intellectual property rights.

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Fashion meets gaming

In this podcast, Gaming & Esports Associate, Will Deller, chats to IP Partner, Rebecca O’Kelly-Gillard, about the crossover between these two giant industries and how businesses can protect and enhance their brands in this new environment.

Listen to the podcast here

Influencer Marketing

Influencer marketing: The regulators’ focus

In a recent article we highlighted how both the UK’s advertising regulator (the Advertising Standards Authority (“ASA”)) and the Competition and Markets Authority (the “CMA”) have been keeping a careful eye on influencer marketing, and in particular, reviewing influencers’ Instagram posts to ensure that commercial content has been appropriately disclosed to consumers. In a further escalation of focus on this area, the ASA launched a new campaign in January which uses targeted ads to sanction social media influencers who repeatedly breach advertising rules. The ASA say that ‘the rules are clear: it must be obvious to consumers before they read, ‘like’ or otherwise interact with a social media post if what they are engaging with is advertising’.

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Intellectual Property

Hermès accuses artist of infringing trade mark over ‘MetaBirkins’

In a bid to raise awareness about cruelty-free luxury goods, artist Mason Rothschild has created a limited number of non-fungible tokens of the iconic Hermès Birkin bag. However, these bags are redesigned as furry, cruelty-free, virtual alternatives. Hermès states that no permission was sought to use the trade mark and that Rothschild is infringing the Hermès trade mark.

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General Product Safety Regulation: France proposes to regulate standalone software

On 1 January 2022, France took over the Presidency of the Council of the European Union for six months, with a roadmap focusing on strengthening consumer safety while facing a digital boom. In its February 2020 report on the security and liability implications of artificial intelligence, the Commission assessed the limits of current security and liability regulation in light of the new challenges posed by digital technology.

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Digital Services Act: EU takes decisive step closer to introducing global-first rules for digital services

Europe's plans to introduce sweeping new rules and obligations for online service providers took another decisive step forward on 31 January, with the start of three-way negotiations between the EU institutions to reach an agreement on the proposed Digital Services Act (DSA). These "trilogue" negotiations between the European Commission, European Parliament and Council are set to take place on a regular basis until consensus on a final text is achieved. The current French Presidency of the EU is presiding over these meetings. With the national French Presidential elections due in April and digital regulation high on the political agenda, France is pushing strongly to reach an agreement on a final text by June 2022, before the end of its EU Presidency. However, this remains a very ambitious agenda, and discussions may well continue into the second half of 2022, under the forthcoming Czech Presidency of the EU.

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How will Plastic Packaging Tax affect you?

The implementation date for the UK’s new tax on plastic packaging is fast approaching, and it is already having a material impact on supply chains. As noted in our previous article, the Plastic Packaging Tax (“PPT”) is targeted at plastic packaging manufactured in or imported to the UK. It comes into effect on 1 April 2022, and affects manufacturers, producers and importers of plastic packaging including overseas businesses. Businesses will need to register for PPT if they have manufactured or imported 10 or more tonnes of finished plastic packaging components within the last 12 months, or will do so in the next 30 days anytime from 1 April 2022. From 1 April 2022 to 30 March 2023, the 12 months threshold will be worked out differently. PPT will then apply to chargeable components which contain less than 30% recycled plastic.

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French Presidency on a crusade to set global trade standards based on fair and green objectives

In a climate of global uncertainty fuelled by geo-economic tensions and supply chain issues linked to the pandemic, the French Presidency of the European Union is pressing ahead with trade initiatives designed to enhance the EU’s “open strategic autonomy”. This Brussels concept points to an EU trade policy that goes beyond the traditional goal of removing barriers and ensuring market access, in favour of a broader approach taking into account environmental goals and sustainable development. It is an approach already outlined in the European Commission’s February 2021 Communication on the Trade Policy Review, which put forward a more assertive role for trade policy in support of the EU’s green and digital transformations of the economy.

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News & Events

We achieve victory for Fashion ID in “vegan down” case

We have successfully represented Fashion ID GmbH & Co. KG in an advertising law case concerning the use of the term "vegan down" to advertise clothing. The Association of the German Down and Feather Industry (Verband der deutschen Daunen- und Federnindustrie e.V.) tried to prevent Fashion ID from using the term "vegan down" online. The claim was based on alleged misleading of consumers, as the term "vegan" in connection with "down" was contradictory and therefore misleading. The Düsseldorf Regional Court ruled in favour of Fashion ID (Case No. 34 O 11/21): The term "vegan down" is not misleading. These decisions in favour of the retailer are a clear and positive signal for new trends: it is important and in the interest of consumers to be allowed to advertise new and alternative raw materials by naming the materials that are to be replaced.

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We advise Kreos Capital on its participation in HungryPanda's $130+ million Series D equity and debt funding round

HungryPanda focuses on food delivery for Asian restaurants and Chinese populations overseas, and the company has recently expanded its product offering to include Asian groceries, increasing its services under the Panda Fresh brand. With the new funding, HungryPanda will invest in growing its market share within the Asian food delivery sector to solidify its position as a market leader, while also exploring new opportunities, expanding its international offering and pursuing strategic acquisitions.

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