Welcome to the November 2023 edition of Talking Shop. This edition includes a summary of why corporate PPAs are important for the Retail & Consumer sector; a tool to help you stay up to date with consumer protection laws; an update on changes to the unfair contract terms regime in Australia; an overview of how franchising can be used to grow your brand internationally; and much more.
In this newsletter:
Corporate PPAs are becoming increasingly prominent for global businesses, driven largely by their environmental and economic advantages and are a valuable tool for Retail and Consumer businesses. With consumers increasingly demanding that luxury, fashion, hotel and food & beverage brands be more sustainable as opposed to simply claiming to be, the use of Corporate PPAs to obtain energy efficiency is particularly beneficial for brand enhancement. PPAs demonstrate a commitment to clean energy and sustainable practice to both attract environmentally conscious consumers and to differentiate brands from competitors.
We know that ESG is a very broad (and legally sometimes overwhelming) topic. To tackle this, we are delighted to offer scoping calls, in which we discuss where your business is at in terms of ESG and where you want to be. We can then help you navigate the ESG landscape and set priorities - some of the upcoming laws are far out on the horizon, while others might require action sooner. Depending on your needs and the result of the scoping call, we can offer tailored advice on specific laws, training for you and your business teams on specific topics, tracking solutions for upcoming ESG laws, or guidebooks to be used by your business.
Consumer protection laws are rapidly developing in many major markets. Our Business-to-Consumer team has created a Consumer Reporting Tool to help international businesses keep up to date with these developments across their key markets. The personalised report is drafted with your in-house legal team in mind, and covers updates and changes across the full scope of consumer law, marketing law, advertising law and digital regulation relevant to your B2C interactions. You will also be able to discuss the report with the dedicated local team if you want a deeper dive into a specific update or change.
Get in touch if you would like to find out more about our Consumer Reporting tool.
The new changes to the unfair contract term regime in the Australian Consumer Law now apply to businesses across Australia. The latest changes mean that businesses are no longer allowed to propose, use, or rely on UCTs in standard form contracts with consumers or small businesses. The regime has also extended the meaning of ”small businesses” to include companies with less than $10 million annual turnover or 100 employees. Businesses can now be penalised for using UCTs, with the maximum fine being up to $50,000,000; three times the value of the benefit obtained from the conduct (if the court can determine this); or if a court cannot determine the benefit, 30% of adjusted turnover during the breach period.
For companies looking to expand overseas, what do they need to consider? Typically, a brand with global aspirations has two main options: organic growth or growth via third party relationships. While organic growth has a number of attractions, only those companies with the deepest of pockets can afford to expand on a global scale. For most brands this leaves growth via third party relationships as the only realistic option for international expansion. While licensing, agency and distribution are all valid international growth models, for brands that want to build a common global identity, a consistent consumer experience and ultimately a profitable business, franchising, if correctly planned, implemented and executed, is a good way to achieve these goals.
In Consorzio di Tutela della Denominazione di Origine Controllata Prosecco v Australian Grape and Wine Incorporated  SGCA 37, the Court of Appeal allowed the Consorzio’s application to register “Prosecco” as a geographical indication designating wine from Italy to proceed to registration. This marks the first time that the Court of Appeal has had to interpret various provisions in the Geographical Indications Act 2014 (No. 19 of 2014), in particular the provisions pertaining to the registrability of geographical indications. This case update sets out a brief introduction to the Singapore GI regime and discusses the Court of Appeal’s ground-breaking decision.
The Swedish Chemicals Agency has recently carried out an audit of period underwear that has anti-bacterial properties because of biocidal treatment and/or is being marketed as anti-bacterial. The audit highlights that, unknown to many retailers, these types of products may be subject to high-level regulatory requirements under the EU Biocidal Products Regulation. As the market for innovative menstrual hygiene products expands, retailers must be aware of current regulatory landscape, as well as the ESG implications of using health- and environment hazardous chemicals in products worn close to the body.
The Department for Business and Trade recently announced plans to reduce the late payment of business invoices, amid concerns around payment culture towards Small and Medium-sized Enterprises. Sector analysis regularly shows that SMEs in the retail and consumer sector contend with the highest number of late payees compared to data from other sectors. The DBT intends to introduce new, tougher measures on late payments in the upcoming Prompt Payment and Cash Flow Review and aims to improve delivery and enforcement of policies, making it possible for more SMEs to receive timely payments. As it stands, owners of small businesses are forced to invest an excessive amount of time chasing overdue payments, resulting in cash flow issues. This is particularly critical against the backdrop of the retail and consumer sector's current ongoing economic challenges.
Last month, we held our Retail & Consumer Annual Update, ‘Navigating Online & Brand Challenges for Consumer-Facing Businesses’ at our London office, discussing some of the latest legal developments in the Retail & Consumer sector. Speakers included both Bird & Bird team members as well as industry experts from the ICO, the CMA and the former Attorney General Sir Jeremy Wright MP. Insights were shared aiming to help businesses navigate online and brand related challenges, including online harms, privacy, selling and pricing practices and green claims. If you would like to discuss more about the topics discussed at the event, please contact the speakers or Head of Retail & Consumer, Graeme Payne.
8 February, 16.00 GMT, online
In a competitive global market, losing talented staff, customer contacts, confidential information and other company property can all be very damaging. It is vital for international employers to understand the relevant legal framework and practical steps required to protect their businesses from competitive threats before and after employees leave.
Join our International Employment and Intellectual Property experts as they share key learning points for identifying and protecting your trade secrets and intellectual property, including discussion on preventive measures, crisis response, and handling international disputes in this area.
While this event primarily caters to in-house counsel and HR professionals, it is also relevant to anyone responsible for people-related issues or IP protection within their organisation. We hope you can join us!