Welcome to the September 2023 edition of Talking Shop. This edition includes a spotlight on sustainability, where we look at Extended Producer Responsibility across the globe, the new European Battery Regulation, and two updates from France. You can also find a summary of the recently published Annual Report from Ireland's Consumer Protection Regulator; a tracker on the new Directive on consumer class actions; and much more.
If you're based in London, remember to RSVP to our in-person Retail & Consumer Annual Update, taking place on 12th October. We'll be joined by high profile speakers to discuss navigating online and brand challenges for consumer-facing businesses. Find out more in the News & Events section below, and RSVP here.
In this newsletter:
In the current global context, the need to introduce extended producer responsibility schemes - under which producers will become responsible for the recycling and reuse of textiles they put onto the market – is becoming of central importance for regulators and for the future of the textile industry. Despite the efforts of the EU Commission, the current approach to EPR varies from one country to the other at the EU and international level. Our EPR tracker can help you navigate the different national laws and guidelines applicable in a selection of countries in Europe as well as in the Asia-Pacific region and in the UAE.
The new European Battery Regulation (EU 2023/1542) came into force on 17 August 2023. It is part of the European Green Deal and sets strict sustainability standards for batteries in the EU. It regulates the entire lifecycle of batteries, from manufacturing to recycling, with a focus on optimizing performance and reducing CO2 emissions. It also aims to ensure that environmental and human rights due diligence requirements are met in battery value chains. Companies should start to assess what obligations will apply to them from 18 February 2024.
Collecting and sorting of textiles and clothing in Australia does not presently exist at a national level. However, significant changes are underway which brand owners should pay close attention to. In June 2023, a consortium led by the Australian Fashion Council launched the country’s first National Clothing Product Stewardship Scheme and roadmap to clothing circularity by 2030 called Seamless. Seamless is designed to cover all new clothing imported into or manufactured in Australia including outer and underwear.
The long awaited updated version of the practical guide to environmental claims has been published by the DGCCRF (the French administrative authority competent for the environmental information obligation and green claims). The updated guide is divided into two parts. The first part describes the applicable legal framework, which has evolved considerably in recent years. The second part is more practical and covers the voluntary use of various environmental claims by professionals.
In a recent decision, the French Council of State (France’s highest administrative court – le Conseil d’Etat) cancelled the Order of 30 November 2020 on signs and markings that could lead to confusion regarding sorting rules. The use of the “green dot” was not allowed in France as the logo was considered confusing for consumers. Following judicial action from professional associations and green dot trademark owner, the prohibition was first suspended in 2021. Such suspension was confirmed in June 2023.
On 12 September 2023, the Dutch Competition Authority imposed a nearly 8 million Euro fine on television sets manufacturer LG Electronics Benelux Sales B.V. for actively influencing prices of retailers. The last action before this decision in the ACM’s crusade against vertical price influencing was the rejection of Samsung's administrative appeals in November 2022 against a fine of nearly 40 million Euros for unduly influencing online selling process of television sets. The decision of the ACM to fine LG shows that the ACM’s crusade regarding vertical restrictions is not over (yet).
Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC must come into force in EU member states no later than 25 June 2023. The Directive will allow collective actions to be brought by a representative body against businesses if they breach EU laws intended to protect consumers. We are tracking the implementation of the Directive and have mapped the current European collective action landscape it is updating.
The aim of the changes is to reduce consumer debt problems and prevent credit and payment related misconducts. The first change concerns the presentation of the payment options. The other key change concerns strong identification of the consumer in case the consumer chooses to delay the payment. There are some other changes in the reform of the Consumer Protection Act, but these are the ones concerning a wide range of actors in the online sphere. Note that fines are possible for not implementing these correctly.
Ireland’s consumer protection regulatory authority, the Competition and Consumer Protection Commission, recently published its Annual Report for the period 01/01/2022 – 31/12/2022. We have outlined briefly a number of topics in the Report, which are of particular relevance for consumer-facing businesses operating online.
The Polish Office of Competition and Consumer Protection has been investigating influencer marketing practices for quite some time. The first charges, which were issued in 2022, concerned surreptitious advertising and a lack of cooperation with the Office. These were then diligently followed up on with official guidelines issued by the Office and addressed to influencers, published in September 2022. A year later, the Office is saying “take another look” and issuing further decisions resulting in total financial penalties amounting to over EUR 1 million (PLN 5m).
By way of quick recap, the new Consumer Duty aims to increase the current levels of consumer protection in the retail financial services sector in the UK. The Consumer Duty applies to firms’ regulated activities and the products and services sold to ‘retail clients’. The FCA has explained that this term includes all clients other than professional clients and eligible counterparties. With its wide-reaching impact on the retail financial services sector in the UK, we set out some of the key data protection considerations of the new UK FCA Consumer Duty.
Traditionally, Australian work, health and safety legislation and associated regulatory oversight has been considered largely the preserve of high-hazard sectors such as construction, manufacturing and material handling, with work safety synonymous with physical safety. The increased attention from a work, health and safety regulatory perspective on psychosocial safety in the workplace in recent times has meant that this paradigm is being challenged.
Effective 1 January 2024, the European Union is introducing a new tax reporting requirement for payment service providers, including card issuers, acquirers or other businesses processing payments. As of this date, PSPs must monitor their merchants in relation to cross-border payments and report related payment data to the EU Member States. The data will be collected and centralised in a new EU database called the Central Electronic System of Payment information, where it will be stored, aggregated and cross-checked with other EU databases.
12 October, 15.30 BST, London
We are excited to be holding our first in-person Retail & Consumer Annual Update since 2019! Gain the inside scoop on the latest legal developments in the Retail & Consumer sector from Bird & Bird and industry experts. We will be sharing insights to help you navigate the online and brand challenges facing your business, including online harms, privacy, selling and pricing practices and green claims, with a number of high-profile guest speakers.
19 October, 16.00 BST, online
We are delighted to invite you to the fifth in our International Business-to-Consumer series of webinars, covering the latest developments in the area of product compliance and liability. In particular, we will explore the new General Product Safety Regulation (EU 2023/988); the current status of consumer product safety laws in the UK post-Brexit; a case law update on the ECJ’s decision in Fennia v Koninklijke Philips NV (fire caused by coffee machine); the European Commission’s proposed revised Product Liability Directive; and an update on post-Brexit regulation in the UK, including recognition of the CE mark.
10 October, 16.00 BST, online
We are delighted to invite you to join us at our annual HR Data Essentials event. Experts from our International Privacy & Data Protection and HR Services teams will update you on developments and will consider the hot topics to provide analysis and top tips for tackling key data-related issues in employment, and to help you understand HR data from every angle. These events are principally aimed at HR, privacy and legal teams, but our sessions should also be of interest to anyone with responsibility for people and data protection issues in their organisation.