Grace Han Stanton, Jared Bryant, and Mira Park authored an article titled "Safeguarding Style: An Examination of Brand Protection in the Fashion and Luxury Industry" for World Trademark Review's third quarter special report. The report examines brand protection in the fashion and luxury industry and discusses the growing regulatory scrutiny of sustainability and green claims in the United States, including the rules promulgated by the USPTO and FTC related to such claims.

The U.S. Environmental Protection Agency published a final reporting rule under the Toxic Substances Control Act on October 11, 2023, which requires manufacturers of per- and polyfluoroalkyl substances and PFAS-containing products to report information on PFAS dating back to 2011.

In the beauty, cosmetics, and personal care world, companies are preparing to comply with upcoming Modernization of Cosmetics Regulation Act provisions of the Federal Food, Drug and Cosmetic Act, which is going into effect on December 29, 2023.

A flurry of legislative activity over the past year has brought meaningful changes to a variety of privacy and security provisions in state and federal law. At the state level, as in 2022, we have seen a handful of changes to generally applicable breach notification statutes, along with action on both narrower security provisions and broader omnibus privacy laws.

Hosted by Perkins Coie Consumer Products and Service litigators David Biderman and Jasmine Wetherell, each episode features a conversation with noted professionals about achieving success in disputes and negotiations. The discussions are not limited to the legal realm, as success demands incorporating teachings from a breadth of perspectives. 

The U.S. District Court for the Northern District of Illinois is the latest court to require a company to pay millions of dollars in fees to adjudicate mass arbitrations. Judge Harry D. Leinenweber compelled Samsung Electronics America, Inc., and Samsung Electronics, Co., Ltd. to arbitrate according to Samsung’s Terms & Conditions and ordered Samsung to pay over $4 million in initial fees to the American Arbitration Association before the merits of any individual claims are considered.

Jeffrey Hunter and Kaela Shiigi's update as part of the Summer Sustainability Series was republished by Westlaw Today. The article outlines the current extended producer responsibility packaging laws in the United States, highlights proposed litigation, and identifies key compliance responsibilities for which products manufacturers should prepare.

Jeffrey Hunter, Andrea Driggs, and Sara Cloon's update as part of the Summer Sustainability Series was republished by Packaging Digest. The article examines current state law developments in regulating PFAS chemicals in consumer products and food packaging.

Amanda Beane and Tim Carter's update as part of the Summer Sustainability Series was republished by Bloomberg Law regarding certain regulatory developments in the United States and EU related to green claims.

Extended producer responsibility (EPR) laws impose liability on producers for the lifecycle of their products. Many U.S. states already impose requirements on producers of e-waste and batteries, but the latest spate of EPR laws has focused on packaging materials, paper and plastic products, and food service ware.

Perkins Coie is pleased to announce the launch of our first midyear Food and Consumer Packaged Goods (CPG) Legal Trends Report.

The U.S. Food and Drug Administration (FDA) issued guidance on August 7, 2023, clarifying new requirements for cosmetic facility registrations and product listings under the Modernization of Cosmetics Regulation Act of 2022 (MoCRA).

The Federal Trade Commission recently finalized updates to its Guides Concerning the Use of Endorsements and Testimonials in Advertising, which address the FTC’s latest thinking about how the truth-in-advertising standards under the FTC Act apply to endorsement and review-related issues.

The fashion industry, known for its dynamic and ever-evolving nature, is embracing environmental, social and governance principles like never before.

Brands continue to promote sustainable and eco-friendly qualities of their products and services, and regulators are sharpening their enforcement tools in response. This Update summarizes certain regulatory developments in the United States and EU related to green claims.

As of July 18, 2023, Oregon has joined 11 other states to pass a comprehensive consumer privacy law. The Oregon Consumer Privacy Act requires various disclosures around the collection and processing of personal data, provides consumers with rights to their data, and imposes obligations on controllers and processors, including honoring global opt-out signals.

This Update examines current state law developments in regulating PFAS chemicals in consumer products and food packaging, summarizes recent litigation against product manufacturers, and outlines next steps that manufacturers, retailers, and distributors of consumer products should consider to minimize their potential liability and risk.

The U.S. Supreme Court has held—by a 5-4 margin—that it did not violate due process for a Pennsylvania court to exercise jurisdiction over an asbestos case with no connection to Pennsylvania because of a unique Pennsylvania foreign corporation registration statute that requires consent to general jurisdiction to do business in the state.

On June 23, the U.S. Supreme Court held that federal district courts must stay all proceedings pending appellate review of an order denying a motion to compel arbitration.

Over the last decade, carbon offsets have gained popularity within the retail and consumer products industry as a voluntary tool to mitigate their Scope 1, 2, and 3 greenhouse gas emissions.

Texas Governor Greg Abbott signed the Texas Data Privacy and Security Act into law on June 18, 2023. The comprehensive privacy and data security law will go into effect on July 1, 2024.

In recent years, the apparel, fashion, and luxury goods industries have seen an increased focus on environmental, social, and governance (ESG) initiatives.

Governor Jay Inslee signed Washington state’s Toxic-Free Cosmetic Act into law on May 15, 2023. The Act sets stringent standards for companies operating within the state, aiming to eliminate the use of toxic ingredients in cosmetics and personal care products.

The Federal Trade Commission recently announced a notice of proposed rulemaking to expand its Negative Option Rule to apply to all recurring subscription programs.

Perkins Coie is pleased to announce the launch of our seventh annual Food & Consumer Packaged Goods Litigation Year in Review. Accompanying the 2022 report are infographics that highlight key litigation outcomes, filing data, and industry trends.

The U.S. Food and Drug Administration recently updated its FDA Food Code, requiring new obligations for disclosing major food allergens.

Data security will be an enforcement priority for the FTC in 2023. The FTC, in its December 14, 2022, Commission meeting, highlighted four data security measures that it believes are particularly important for strong cybersecurity.

Buried within the thousands of pages of the Consolidated Appropriations Act of 2023 is the most significant statutory expansion over cosmetics to the U.S. Food and Drug Administration’s authority since 1938. Among the spending bill’s many provisions is the Modernization of Cosmetics Regulation Act of 2022, which will have lasting effects on the cosmetics industry. Among other measures, MOCRA will provide FDA authority to conduct mandatory cosmetics recalls, create adverse event reporting and recordkeeping requirements, and establish good manufacturing practices.

By conducting due diligence and securing reasonable contractual protections before entering a relationship, brands and personalities can start their partnerships on the right foot and help protect their value and reputations. In this Update, we outline some key steps to help avoid potential public relations and legal woes associated with co-branding and endorsement arrangements.

This series of updates contains information regarding issues and trends facing the retail industry during the holiday season. The list highlights all of our published updates on this topic.

Another new year approaches, so it’s time for retailers to revisit advertising and marketing law compliance strategies to avoid class actions, regulatory enforcement actions, and competitor challenges. In this Update, we share our picks for the top five U.S. marketing law topics that deserve your attention in 2023.

Forfeiting insurance coverage on a covered claim is a quick way to ruin the holidays. Every year, tens of thousands of covered claims are left unpaid due to clerical mistakes by policyholders or their brokers.

Recent news has shined a spotlight on the legal consequences of mass layoff situations. Employers should take steps now to prepare for possible reductions in their workforce.

As the California Privacy Rights Act replaces its predecessor, the California Consumer Privacy Act, retailers have a significant amount of compliance preparation to do—right at peak season.

New Jersey has become the latest state to pass a law governing some types of automatically renewing subscriptions.

Cyberattacks continue to plague businesses, making the fallout of data breach notification and response as critical as ever. This year, like 2021, has been relatively quiet as it relates to state updates to breach notification laws.

In the retail environment, customer service is paramount. Workers spend their time answering questions, stocking shelves, organizing displays, sourcing and sizing, and, yes, even gift-wrapping sometimes. But they're not assembling the products, so they certainly aren’t “manual workers,” right? Not necessarily.

The first day of fall offered an opportunity to look back at the summer that was. Summer 2022 was a time of continued supply chain disruptions; inflation; and acceleration of environmental, social, and governance investing and reporting. In this Update, we review this year’s Sustainability Series. As a topic of conversation and, more importantly, a goal for the retail and outdoor industries, sustainability will continue to be at the forefront of the strategic conversation for businesses, investors, and regulators.

The metaverse is undoubtedly one of the hottest topics of 2022. So, while still early stage, it’s unsurprising that fashion brands have shown an interest in the metaverse’s potential. One reason fashion brands have taken an interest in the metaverse is, presumably, the creative freedoms it provides. But with that freedom comes an easier means for infringers to trade off of brands’ valuable intellectual property.

The Federal Trade Commission released an advance notice of proposed rulemaking on “Commercial Surveillance and Data Security” on August 11, 2022. The ANPRM, approved on a 3-2 party line vote, is the initial step in a process that could result in the adoption of the first federal regulation addressing privacy, data security, and algorithmic discrimination across broad sectors of the U.S. economy.

Brands recognize that consumers value sustainability and continue to promote the green and eco-friendly qualities of their products and services. However, with growing popularity comes extra scrutiny, and “green claims” are increasingly subject to challenge by regulators, competitors, and class action plaintiffs.

The fashion industry is one of the most polluting industries in the world and is responsible for roughly 10% of global greenhouse gas emissions. There are many contributing factors to this problem, including pollution from textile factories, water-resource depletion, and merchandise waste.

Online shopping has come a long way in providing consumers with a vision of how products might look on them.

Sustainable investing is a big and growing business. It is also widely misunderstood. Many of the predominant investment tools used to assess public company environmental, social and governance practices have been widely criticized as inadequate and potentially misleading.

In recent years, apparel and retail businesses have increasingly sought to provide customers with options to participate with the brand’s merchandise and services in virtual environments.

The Federal Trade Commission recently proposed updates to its Guides Concerning the Use of Endorsements and Testimonials in Advertising. This article introduces key proposed changes to the Guides that signal the FTC’s evolving views on how to avoid deceptive practices related to social media influencers, customer review programs, advertising to children, and more.

In its most recent open meeting, the Federal Trade Commission (FTC) unanimously (1) issued a COPPA policy statement directed at ed tech providers and (2) proposed amendments to the Endorsement Guides, which address influencer advertising on social media and consumer reviews.

Litigation concerning per- and polyfluoroalkyl substances (PFAS) is nothing new. Over the past two decades, thousands of complaints have been filed against hundreds of companies concerning these so-called “forever chemicals.” While past litigation has primarily been related to environmental contamination, an increasing number of class actions are being brought against consumer products companies, alleging false and misleading product labeling based on the presence of PFAS in their products.

Through its newly launched Center for Industry Self-Regulation (CISR), BBB National Programs announced the launch of the TeenAge Privacy Program (TAPP).

The general counsel for the National Labor Relations Board, Jennifer Abruzzo, on April 11, 2022, filed a brief in a case pending before the NLRB asking the Board to overturn decades-old precedent and make several significant changes to employers’ rights during unionization campaigns.

Perkins Coie is pleased to present the third edition of Labor Law Today —Year in Review, highlighting the past year’s most noteworthy developments.

For many years, the most significant law governing biometric-based products and services has been the Illinois Biometric Information Protection Act. This past month, however, another biometric data privacy law woke from a long, undisturbed slumber.

Perkins Coie is pleased to announce the launch of our sixth annual Food Litigation Year in Review. In recognition of the firm’s practice expansion, this year-in-review report has been broadened to the Food & Consumer Packaged Goods Litigation Year in Review.

Businesses that allow customers to sign up for automatically renewing subscriptions must comply with a patchwork of state and federal regulations.

Andrew Grant, Collen Ganin, and Akua Asare-Konadu examine unique legal questions facing resellers and brands in the resale marketplace and explain how to navigate them, including secondhand-dealer laws and IP infringement.

With the new year approaching, this is an excellent time to turn over that new leaf and commit to starting, or reestablishing, good habits. Businesses should be no different.

‘Tis the season for retailers to set best practices to avoid class actions, regulatory enforcement actions, and competitor claims.

Though it was not long ago that resolutions of California Consumer Privacy Act readiness ushered in the new year, ‘tis the season once again to deck the halls with privacy compliance checklists.

Employer vaccination policies are probably the hottest topic in this final quarter of the calendar year. Some employers are even planning to offer COVID-19 vaccination shots at holiday parties to make it easier for employees to get vaccinated.

While recommerce is not new, its renaissance and shift to e-commerce has raised issues that resellers and brands will need to navigate, including possible expansion of secondhand-dealer laws to ecommerce and avoiding IP infringement through proper product authentication.

The U.S. Department of Labor’s Occupational Safety and Health Administration issued its long-awaited emergency temporary standard requiring all employers with a total of 100 or more employees to mandate vaccination and/or weekly COVID-19 testing. OSHA also released a comprehensive FAQ to address questions.

On October 25, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance related to the COVID-19 pandemic, adding a brand-new section addressing religious objections to COVID-19 vaccine mandates.

The COVID-19 pandemic accelerated the digitalization of the fashion industry – including for luxury brands, which have historically been slow to embrace electronic and digital commerce. Indeed, in 2020, e-commerce in the United States achieved an astounding ten years’ worth of growth in a three-month period.

Cyberattacks continue to make the news and affect our lives in increasingly more significant ways.

In this issue of the Perkins Coie Summer Sustainability Series, we discuss how regenerative agriculture practices affect the farming and food distribution industries, as well as some of the novel legal issues that may arise.

In this issue of the Perkins Coie Summer Sustainability Series, we discuss best practices based on Federal Trade Commission guidance and the most recent green advertising litigation trends.

With the surge of COVID-19 cases due to the Delta variant, many employers are considering whether to require employees to be vaccinated, how to encourage employee vaccinations, and the implications of vaccine policies for their businesses.

New York City’s ordinance could be the beginning of a trend, or simple an outlier, but one that every business in the city should be aware of.

From investors and shareholders to customers and employees, key stakeholders are increasingly demanding both corporate action and broad-based public disclosure of environmental, social, and governance (ESG) issues. As corporations take action and report on their ESG challenges and achievements, they will be well served to take steps to mitigate the risks of both regulatory enforcement and private litigation. 

In this issue of the Perkins Coie Summer Sustainability Series, we discuss the debate over the materiality of ESG disclosures to investors and suggest action items for companies considering increased disclosures on these topics.

New York City’s new biometrics ordinance went into effect July 9, 2021. The ordinance regulates the use of “biometric identifier information” in “commercial establishments” such as places of entertainment, retail stores, and food and drink establishments. 

Colorado Governor Jared Polis signed the Colorado Privacy Act (CPA) into law on July 7, 2021, making it the third comprehensive state privacy law enacted in the United States.

The fashion industry is the world’s second largest polluter behind big oil, and is responsible for around 10% of global greenhouse gas emissions. There are a number of contributing factors to this problem, ranging from “fast fashion”—a model based on producing low-cost garments intended to be worn only a handful of times—to disposal of luxury overstock merchandise.

There has been much attention focused on Beijing’s labor policies and practices toward the Uyghur Muslim population and other minority groups in China. Given that the western Xinjiang region is responsible for approximately one-fifth of the world’s cotton supply, many industry players are finding compliance issues a challenge.

The 2021 Summer Sustainability Series will discuss topics including Chinese cotton and slave labor, key components of the circular economy, sustainability litigation, and advertising related to sustainable products and programs. It will also touch on how the sustainability discussion is moving beyond environmental components and expanding to address other elements of environmental, social, and governance (ESG) criteria.

Current events have sparked a significant change in private businesses' political behavior, as companies and their executives shift from nonpartisan observers to leaders taking on political and social causes. While companies may face pressure from some stakeholders to speak out on every issue of the day, that level of engagement may not be feasible or productive. In this update, we provide a road map for companies and their executives to follow when deciding whether and how to engage in political and social issues.

Policyholders with COVID-19 insurance claims may not be aware that insurance policies limit  the time they have to bring a lawsuit against their insurance company.

It’s a new year and it looks like 2021 is going to be another eventful one for privacy. In the past few weeks, we’ve seen several states introduce new privacy legislation, including Washington, New York, and Minnesota.

Perkins Coie is pleased to present the second edition of Labor Law Today —Year in Review, highlighting the past year’s most noteworthy developments.

The Trademark Modernization Act of 2020 (TMA) was signed into law on December 27, 2020, making several changes to the Lanham Act that have important effects on trademark owners’ brand protection programs.

Retail, restaurant, entertainment, and other industries have been devastated by COVID-19 and the resulting governmental orders either precluding or materially limiting operations. In that regard, retail bankruptcy filings have become common occurrences and bankruptcy courts a favored venue for businesses seeking a proverbial “breathing spell.”

For retailers, the holiday season is indeed the most wonderful time of the year: increased foot traffic, increased revenue and endless loops of cheerful holiday music on the in-store system.

Ring in the new year by avoiding practices that could result in class actions, regulatory enforcement actions, and competitor claims.

President-elect Biden has long been allied with the labor movement, and during his tenure as vice president, the administration pursued policies favorable to organized labor.

Patchen Haggerty and Colleen Ganin describe how COVID-19 has created the perfect storm for counterfeiters.

For retailers, the holiday season is indeed the “most wonderful time of the year.”

[Warning: The juxtaposition of joyous holiday festivities and forced labor is not intended to make light of human rights violations, but to assist companies in avoiding common mistakes in their anti-human trafficking disclosure statements.] 

The holiday season and holiday shopping may look a little different this year, especially as more purchases are made online.

Governor Gavin Newsom issued Executive Order N-80-20 on September 23, 2020, extending Executive Order N-28-20 through March 31, 2021, with respect to commercial evictions only. 

COVID-19 has forced many employers to make unanticipated changes to their workforce, with many retailers rolling out a combination of furloughs, layoffs, and breaks in service to address changing market demands and shelter-in-place orders.

In this final issue of the Summer Sustainability Series, we address important considerations in designing and implementing an enforcement program.

Contributor, "Chapter 11: Privacy"

Trademarks play an important role in marketing eco-friendly products and engendering consumer trust. This update highlights that role, potential pitfalls to avoid, and best practices to consider.

Companies across industries—from retail to high tech to financial services—are touting their sustainability initiatives to attract and retain customers and employees.

Consumers increasingly are aware of, and make value assessments and purchase decisions based on, the environmental and social impact of brands. Brands, in turn, are evaluating and embarking on sustainability programs.

On July 15, 2020, a California state court made an important ruling upholding the validity and application of regulations exempting coffee from Proposition 65 warnings.

Brands continue to build their sustainability and environmental marketing programs in response to consumer demand.  

The U.S. Food and Drug Administration (FDA) submitted a report to Congress on July 8, 2020, providing an analysis of the cannabidiol (CBD) marketplace.

Amid the COVID-19 pandemic, cosmetic companies continue to see growing numbers of class action litigation cases targeting the industry.

COVID-19 is the biggest disruption to consumer retail spending patterns in recent history.

The positive economic value of environmentally sustainable supply chain practices is broadly understood and accepted by the outdoor industry.

The U.S. Environmental Protection Agency on June 22, 2020, released the prepublication version of final regulations establishing “significant new use rules” for long-chain perfluoroalkyl carboxylate (LCPFAC) chemical substances, a subset of per- and polyfluoroalkyl substances (PFAS).

States continue to enhance and expand their breach notification requirements, increasing the scope of breaches that require notice as well as the complexity of compliance.

 “Sustainability” is more than just a buzzword or corporate initiative in the outdoor industry.

On this episode, we are joined by Deborah White, president of the Retail Litigation Center (RLC) and senior executive vice president and general counsel of the Retail Industry Leaders Association (RILA). Deborah provides insight and analysis regarding the retail industry’s varied and innovative response to the pandemic, including how large retailers deal with the patchwork of evolving state and local regulations and how they are innovating at breakneck speed to meet consumer demand while maintaining safety for employees, suppliers, and customers.

On Friday, May 22, the California Senate Judiciary Committee voted in favor of an amended version of SB-939, which would limit the rights of many commercial landlords to enforce certain provisions of their leases.

Retailers hit by the economic downturn are considering bankruptcy protections.

COVID-19’s effect on the economy does not discriminate. Business activity has slowed down significantly for many companies, and even more drastically in certain sectors.

States across the country are beginning to reopen or considering reopening following shutdowns in response to the COVID-19 pandemic.

While some states (such as Georgia, South Carolina, Texas, Montana, and Oklahoma) have commenced, or will soon commence, phased or soft business reopenings, other jurisdictions (including the six San Francisco Bay Area counties in California, Connecticut, New York, and Rhode Island) have recently extended their “shelter-in-place” and eviction moratorium orders.

Amid the COVID-19 pandemic, many manufacturers are pivoting their production lines to make personal protective equipment and other much-needed supplies to aid consumers and healthcare professionals in the fight against the disease.

On April 3, 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued an updated recommendation that all workers and members of the general public should consider using non-medical face masks or face coverings to prevent the spread of COVID-19 transmission and infection.

Los Angeles Mayor Eric Garcetti issued a Worker Protection Order on April 7, 2020, which can be found here.

During the public health emergency brought on by the 2019 novel coronavirus (COVID-19), food processors and manufacturers must continue to be vigilant in protecting the health and safety of their workers and the foods they produce and distribute.

Last Friday, the White House declared a national state of emergency amid concerns of the global spread of the coronavirus. Nearly every state and numerous cities have followed suit by issuing declarations triggering emergency measures and regulations on businesses.

The coronavirus pandemic has left employers with many legal questions during this challenging time.

Seeking to preserve the vitality of commercial corridors and reduce retail vacancies, San Francisco voters approved the Vacancy Tax Ordinance, which authorizes a tax assessment on vacant retail space beginning January 1, 2021.

California’s Office of Environmental Health Hazard Assessment (OEHHA) added Δ9‑tetrahydrocannabinol, better known as “THC,” to the list of chemicals requiring specific labeling for retail sale in California. 

California’s Office of Environmental Health Hazard Assessment (OEHHA) issued finalized amendments on January 14, 2020 to California’s Safe Drinking Water and Toxic Enforcement Act of 1986.

The absence of clear federal guidance regarding food and beverages that contain cannabidiol (CBD) has led to a patchwork of state-level regulatory actions across the country. Without uniform guidelines, states have adopted varying and often conflicting approaches.

Lawmakers are back at work in the nation’s capital for a new session of Congress following the holiday break, and it’s clear that the political winds in Washington, D.C., are shifting in favor of the cannabis industry.

Beginning January 1, 2020, Washington employers in industries including hospitality, retail, security, and contracted property services will need to comply with a new law amending the Washington Law against Discrimination (WLAD). 

It’s hard to know what to give to everyone on your list this holiday season.  For the 13th year in a row, the National Retail Federation found gift cards are the most popular item on holiday wish lists, requested by 59% of those surveyed.

A flurry of recent class action lawsuits against manufacturers of CBD products involving a range of claims—from marketing to stock pricing to CBD content—should put the industry on alert. Perkins Coie attorneys look at the recent spate of class actions, what the FDA is doing, and offer mitigating steps for CBD suppliers and manufacturers.

Don’t let the new year be ruined by U.S. class actions, regulatory enforcement actions, or competitor claims. Here are five ad law takeaways for brand and legal teams to consider as 2020 approaches.

On the heels of the U.S. Food and Drug Administration’s (FDA) recent declarations regarding the safety of products containing cannabidiol (CBD), several companies have been hit with class action lawsuits alleging that the company’s CBD-containing products are mislabeled and falsely advertised in violation of state law.

On November 25, 2019, the U.S. Food and Drug Administration (FDA) took several significant actions regarding sellers of products containing cannabidiol (CBD).

Since late February 2019, the U.S. Department of Agriculture (USDA) has been promising to publish guidelines regarding hemp production.

As businesses gear up for the busy holiday shopping season and prepare product lines for the new year, manufacturers and distributors of consumer products must be ready to manage new risks that are likely to appear in the new year. 

The U.S. Food and Drug Administration (FDA) and Federal Trade Commission (FTC) sent a joint warning letter on Tuesday, October 22, 2019, to Rooted Apothecary, LLC, alleging that the Florida-based company has been making egregious advertising claims.

On October 7, 2019, the U.S. Supreme Court denied a petition filed by Domino’s Pizza asking the Court to decide whether Title III of the Americans with Disabilities Act (ADA) applies to websites and mobile apps.

While privacy laws are proliferating globally, the California Consumer Privacy Act (the CCPA) is California’s comprehensive and landmark legislation that seeks to give California consumers expanded rights to learn about and control certain aspects of how a business handles “personal information” collected about its consumers.

Following the recent public hearing held by the Food and Drug Administration (FDA) regarding the safety and efficacy of cannabidiol (CBD), many in the food and beverage industry asked how long it will take for the agency to establish a regulatory pathway for approval of CBD as a food additive.

As more and larger data breaches come to light, states continue to update and expand their breach notification statutes, adding to the patchwork of notification obligations that now exists in every state.

Retail as a business is hard. Retail bankruptcies continue at a rapid rate, leaving some commentators to predict that the days of traditional retail are numbered.

California’s Office of Environmental Health Hazard Assessment (OEHHA) approved a new regulation exempting coffee from Proposition 65 warnings earlier this month.

On May 31, 2019, the Food and Drug Administration (FDA) held its first public hearing concerning products containing cannabis or cannabis-derived compounds (in particular, cannabidiol (CBD), a popular additive to food, beverages and supplements).

The U.K. Modern Slavery Act of 2015, which was modeled after the California Transparency in Supply Chains Act, requires companies falling under its jurisdictional hook (and there are many) to honestly and completely disclose their efforts to eradicate trafficked, slave, indentured, coerced and child (collectively “forced”) labor from their supply chains.

On Sept. 20, the Chicago City Council passed an ordinance to create a business license specifically for the operation of short-term retail or food pop-up establishments.

The U.S. Court of Appeals for the Ninth Circuit issued a decision on January 15, 2019 in a closely followed web accessibility case, Robles v. Domino’s Pizza, LLC, reaffirming Ninth Circuit precedent holding that companies whose online activities share a nexus with physical places of public accommodation may be held liable under the Americans with Disabilities Act for failing to make their websites and apps accessible to persons with disabilities.

Google won summary judgment in Rivera v. Google, a privacy class action alleging violations of the Illinois Biometric Information Privacy Act (BIPA). The case involved “face grouping,” a feature that enables Google Photos to automatically sort and group the photographs in a user’s private account, based on visual similarities between the images of faces in the photos. The court held that any alleged collection of “biometric information” or “biometric identifiers” stemming from this feature did not cause an injury-in-fact sufficient to confer Article III standing. This update summarizes the decision, which may be relevant to clients involved with biometric technology, as well as other clients facing litigation where a no-injury defense may be applicable.

As brick-and-mortar retailers seek effective ways of competing with the perceived convenience of online shopping, more and more are turning to the Internet of Things (IoT) to enhance customer engagement, in-store experience, and administrative and personnel efficiencies.

Here are five ad law takeaways for brand and legal teams to consider as 2019 approaches.

Beyond preparing for this year’s holiday rush, retailers around the country have started thinking about potential changes to their operations in response to California’s sweeping new consumer privacy law.

Pop-ups are a fun and effective way to engage new clients and increase brand awareness while keeping overhead costs low. While these temporary retail stores have been embraced by both retailers and consumers, the approach has the following significant legal considerations that should be kept top of mind.

Retailers worldwide are predicted to spend an unprecedented $2 billion on artificial intelligence/machine learning capabilities in 2018.

U.S. consumers notice and are more likely to buy products that are marketed as Made in USA. President Donald J. Trump proclaimed in his inaugural address that we should “follow two simple rules: Buy American and Hire American.”

The California Supreme Court issued an opinion on July 26, 2018, and found that the federal Fair Labor Standards Act’s de minimis doctrine does not apply to claims for unpaid wages under the California Labor Code.

On June 28, 2018, California adopted the strictest general privacy and data security law in the country, called the “California Consumer Privacy Act” (codified in Assembly Bill 375), which will come into effect on January 1, 2020.

Yesterday, the U.S. Supreme Court overruled more than 50 years of Commerce Clause precedent to hold that a state may require an out-of-state retailer with no physical presence in the taxing state to collect sales and use taxes on sales of goods and services delivered in the state.

This spring has brought a particularly active round of revisions to state data breach notification laws.

The General Data Protection Regulation (GDPR), which is effective May 25, 2018, requires notification to European regulators within 72 hours of the discovery of many types of data breaches. This deadline requires speed and organization that no other jurisdiction currently requires, especially in the United States. Organizations that hold personal data of EU residents and do not have an incident response plan should promptly develop one so they can comply with the GDPR’s requirements.

Any individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity (collectively, Entity) that owns or licenses computerized data that includes an IA resident’s PI that is used in the course of the Entity’s business, vocation, occupation, or volunteer activities and that was subject to a breach of security.

Last Friday, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued its long-awaited decision in ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. Mar. 16, 2018).

The state of Washington’s new paid sick and safe time requirements became effective January 1, 2018.

Oregon is one of 35 states where the legislature has successfully enacted a statute capping the amount of noneconomic damages, commonly known as “emotional distress,” that juries can award. With the issuance of two recent opinions from the Oregon Court of Appeals, however, Oregon now joins six other states with courts that have ruled such caps are unconstitutional.

Imagine the public relations nightmare poor Santa Claus would face if forced labor or corruption was found in his factory.

This holiday season, brands are ready for bustling sales, special offers and joyful consumers.

We all know to avoid the topic of politics with family and friends at the holidays, but in recent months, American companies and the CEOs who lead them have spoken publicly on social and political issues like never before. 

The Ninth Circuit recently ruled that the Resource Conservation and Recovery Act’s (RCRA) anti-duplication provisions under 42 USC § 6905 do not apply in the absence of a stormwater discharge permit issued under the Clean Water Act.

From fashion clothing in the mail to gym memberships to monthly mobile app subscriptions, the subscription-based business model is everywhere and here to stay.

This update has been republished in California Lawyer on 12.04.2014, "Auto-Renewal Update."

2017 has reminded us that data security threats continue to evolve and that the stakes for companies can be very high if their data security programs fail to evolve as well.

It would be an understatement to say that 2017 has been a difficult year for the retail sector.

This update has been republished in Retail Merchandiser on 10.24.2017, "Holiday Cheer For A Challenging Retail Environment."

Retailers are looking ahead to the holiday season, but many are also watching the NAFTA renegotiation, which is ambitiously (and improbably) slated to conclude around the holiday season.

The holiday season is around the corner, and retailers are planning their holiday marketing campaigns.

New Mexico became the 48th state to enact data breach notification legislation with the Data Breach Notification Act, signed in April and effective as of June 16, 2017.

Many creditors that provide goods to a debtor before a bankruptcy case begins believe that their recovery will be mere cents on the dollar.

A recent federal appeals court decision addresses a familiar issue for many companies: When can a U.S. exporter be liable for a product that is re-exported to a sanctioned country, such as Iran?

The FTC recently issued more than 90 letters to marketers and their social media influencers warning that influencers must clearly and conspicuously disclose material connections in social media posts that promote the marketer, unless the connection is already clear from the context of the posts.

The Americans with Disabilities Act (ADA), first enacted in 1990, generally requires that retailers — as “places of public accommodation” — provide access for those with disabilities to the goods and services offered.

With the 2016 holiday shopping season in full swing, the risk of litigation heightens for retailers. We created our own version of a “holiday list” to identify the top-10 risk areas where retailers may be vulnerable to claims and lawsuits. 

Los Angeles City Attorney Mike Feuer last week announced the filing of four lawsuits against some of the largest retailers in the United States, accusing them of misleading customers by advertising a “sales price” alongside an inflated “original price.”

On November 28, 2016, the U.S. District Court for the Northern District of Texas denied a preliminary injunction that sought to block the nationwide implementation of the new Occupational Safety and Health Administration’s anti-retaliation rule, “Improve Tracking of Workplace Injuries and Illnesses.”

This Update was republished in Law360 on 12.05.2016, "How Employers Can Prep For New OSHA Injury Reporting Rule."

Amnesty International recently released a report alleging that supply chains for production of palm oil—a common ingredient in many consumer products—are tainted by forced and child labor.

The holiday retail season is an ideal time to check that forced labor and bribery—two top and interconnected supply-chain threats—do not undermine the success of your critical sales period.

Bluetooth beacons can be a powerful tool for customer engagement.

On November 3, 2016, a Thurston County Superior Court judge levied an $18 million penalty against a trade association for violations of Washington campaign finance laws.

The Seattle City Council unanimously passed the Secure Scheduling Ordinance (Ordinance) on September 19, 2016.

This year brought a wave of class action complaints alleging that national retailers are violating the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. §§ 56:12-14 et seq., by including certain provisions in their online terms and other consumer-facing notices and agreements.

The Federal Trade Commission recently sued 1-800 Contacts, Inc., the largest contact lens retailer in the United States, charging it with restraining competition in violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45.

As retailers enter the holiday season amid a period of increased compliance lawsuits related to the ADA, we offer some timely ways to steer clear of potential ADA pitfalls.

The spring legislative sessions this year brought a now-familiar round of revisions to data breach notification laws, with states broadening their laws in often divergent ways.

A federal judge in Texas has issued a nationwide injunction against the new labor “persuader” reporting requirements that were due to take effect on July 1, 2016.

Perkins Coie’s Privacy & Security and Class Action Defense groups defend Telephone Consumer Protection Act (TCPA) cases throughout the country. This newsletter provides updates on litigation and regulatory developments regarding the Telephone Consumer Protection Act (TCPA).   View the full newsletter.

President Obama signed HR 2576, the Frank Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), into law on June 22, 2016.

The Indian government announced on June 20, 2016 new rules for foreign direct investment (FDI), allowing for up to 100% FDI in certain sectors, including defense and civil aviation.

The federal government took another step in the fight against human trafficking and forced labor.  President Obama signed into law on February 24, 2016, the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA).

In a game-changing event, on February 23, 2016, the U.S. Court of Appeals for the Ninth Circuit in a 2-1 decision ruled that it is a violation of federal law for an employer to use a tip-pooling arrangement that shares tips with normally non-tipped employees, such as kitchen workers or supervisors, even when the employer does not take advantage of the minimum wage “tip credit” permitted by the federal Fair Labor Standards Act (FLSA).

In 2016, companies should consider examining the issue of website accessibility under Title III of the Americans with Disabilities Act.

As of February 1, 2016, employers with employees who work in Tacoma must comply with two new legal requirements.

In four of the last five years, California’s legislature has updated its data breach notification law, expanding its scope and making the required notifications more specific.

The Supreme Court of California ruled last week that consumers could assert claims under California consumer protection statutes for intentionally mislabeling products as “organic.”  In a unanimous opinion, the court reversed a lower court’s ruling that the plaintiff’s claims were preempted by the federal Organic Foods Production Act (Organic Foods Act).

The Department of Justice (DOJ) has once again postponed its proceeding to amend regulations that would spell out the obligations of retailers, hotels, restaurants, places of entertainment and other public-facing businesses to make their websites and mobile applications accessible to individuals with disabilities under Title III of the Americans with Disabilities Act (ADA).

The Department of Justice (DOJ) has once again postponed its proceeding to amend regulations that would spell out the obligations of retailers, hotels, restaurants, places of entertainment and other businesses to make their websites accessible to individuals with disabilities under the Americans with Disabilities Act (ADA).

As the holidays rapidly approach, it is a perfect time for retailers to review their insurance policies and understand the extent of their coverage. Seasonal hires, new products and revisions in services may expose retailers to uncovered risks.

On Tuesday, November 10, 2015, the United States Food and Drug Administration (FDA) announced that it will accept public information and comment on the term “natural” in the labeling of food products, including foods that are genetically modified or contain genetically modified organisms (GMOs).

With the holidays approaching, retailers and their advertising partners are preparing for the busiest time of the year.  Sales advertising is a staple of holiday marketing campaigns, which often include “former price” comparisons, in which retailers emphasize new, lower prices reduced from pre-holiday “regular” prices.

Many of the largest retailer data security breaches have been caused or enabled by the acts or omissions of retailers’ vendors, such as the widely publicized incident at Target Corporation.

The Court of Justice of the European Union (CJEU) issued its landmark decision in Maximillian Schrems v. Data Protection Commissioner on October 6, 2015, ultimately invalidating the U.S.-EU Safe Harbor Framework.

Massive explosions occurred at a warehouse in Tianjin, China, in August 2015, that left hundreds of people dead or injured and destroyed much of the city’s port facilities. Tianjin is located in the industrial north of China and is a critical transit point for many global industries, including electronics, automotive, aerospace, petrochemicals and manufacturing equipment.

Retailers and other businesses use loyalty and rewards programs to draw in customers throughout the year. However, there are several sales and use tax consequences of promoting consumer loyalty.

The decision by the National Labor Relations Board (NLRB) last week in BFI Newby Island Recyclery expands the circumstances in which two otherwise separate and independent employers may be found to be joint employers of a group of workers. 

Since at least 2005, the Federal Trade Commission has asserted that it may regulate lax data security practices as an “unfair” business practice under Section 5 of the FTC Act. The Wyndham hotel chain was the first to challenge this authority in court. In a highly anticipated opinion, the U.S. Court of Appeals for the Third Circuit resoundingly agreed with the FTC that a failure to implement reasonable data security measures may constitute an unfair business practice under Section 5.

Right along with tinsel and eggnog, the annual list of dangerous toys and products issued by consumer watchdogs has become a holiday tradition.

Companies doing business in the United Kingdom take note: the U.K. government just made the not-so-long-awaited announcement that businesses with an annual turnover of 36 million British pounds (£36M) will be subject to the reporting requirements of the U.K. Modern Slavery Act of 2015 (U.K. Act).

In last Friday’s long-awaited TCPA Omnibus Declaratory Ruling and Order (Order), the Federal Communications Commission (FCC or Commission) may have dramatically altered the landscape for TCPA class action defense.

Protecting intellectual property (IP) is a core consideration for most businesses, and protection takes many forms, including trademark protection for brands and copyright protection for assets ranging from entertainment (songs, books, and movies) to software code. Savvy businesses invest in trademark and copyright registrations, yet some business enterprises overlook a key aspect of IP protection: Customs.

Four state legislatures closed their sessions with changes to their data breach notification laws, potentially imposing significant new compliance burdens.

Drones, or unmanned aerial vehicles (UAVs), promise to revolutionize not just commerce but the insurance markets as well.  In 2014, the European Commission estimated that, within 10 years, UAVs will represent 10% of the global civil aviation fleet.  

In the ramp up to this holiday season, the record number of retail and mall closures and bankruptcies should put retailers and their vendors on alert. Several retail icons have sought or considered bankruptcy protection.

Republished in Law360 on 06.25.2015.

During their spring 2015 legislative sessions, Washington, Wyoming, Montana, and North Dakota expanded their data security breach notification laws.

To improve customer experience and understand customers’ movements and interactions on their premises, retailers, hotels and other brick-and-mortar businesses increasingly use signals from mobile devices to observe their customers’ movements.

The Antitrust Division of the U.S. Department of Justice recently announced its first criminal antitrust prosecution in e-commerce. David Topkins was charged on April 6, 2015, with price fixing in violation of Section 1 of the Sherman Antitrust Act in the online sale of decorative posters.

With major data breaches again making news, it is important for corporate policyholders to keep abreast of insurance developments in this emerging and fast-moving area. In this update, we provide some thoughts on cyber liability and reputational insurance trends to watch in the months ahead.

Target’s 2013 data breach has generated over 100 consumer lawsuits, which were consolidated last year before the U.S. District Court for the District of Minnesota. On December 18, 2014, Judge Paul A. Magnuson issued a decision on Target’s motion to dismiss the consolidated consumer cases.

The Office of the General Counsel of the National Labor Relations Board (NLRB) issued 13 complaints, on December 19, 2014, against McDonald’s franchisees and their franchisor, McDonald’s USA, LLC (McDonald’s USA), involving alleged labor law violations.

Some retailers in San Francisco will need to set work schedules two weeks in advance or face stiff penalties under a new law that goes into effect in 2015. San Francisco’s recently enacted Retail Workers Bill of Rights will impose new requirements on retailers within San Francisco.

The National Labor Relations Board (NLRB) issued its decision in Purple Communications, Inc. & Communication Workers of America, AFL-CIO today, holding that employees who are given access to company email accounts have a right to use those email accounts for activities protected by federal labor law, including union organizing.

In this installment of “Perkins Coie Wrapping Papers,” we take inspiration from “The Twelve Days of Christmas” to provide an overview of the top twelve privacy and data security issues retailers should consider as the year comes to a close.

The holidays are quickly approaching, and shoppers are expected to spend in excess of $600 billion this season. The holiday season is shaping up to become a winter wonderland for retailers.

The Department of Justice takes the position that websites are covered by the Americans with Disabilities Act (ADA).  More claims are being filed by plaintiffs targeting retailers whose websites are inaccessible to consumers who are blind or have low vision.

The holiday shopping season is fast approaching and for the brick and mortar retail industry, it is a critical time. Whether you are a landlord of a shopping center, a long-term retail tenant, or a temporary seasonal tenant, there are several leasing issues that arise during the holidays that are worth noting. 

In a significant win for franchisors, the California Supreme Court ruled 4-3 that although Domino’s “imposes comprehensive and meticulous standards for marketing its trademarked brand and operating its franchises in a uniform way,” it cannot be held vicariously liable as an “employer” or “principal” in a sexual harassment lawsuit filed by an employee of a Domino’s franchisee.

As the Napa Valley community begins the process of repairing damage and healing from injuries and losses related to the earthquake that struck on August 24, 2014, we extend our heartfelt wishes to those affected by the natural disaster.

Last week, in an unprecedented shift away from long-standing Board precedent, Richard F. Griffin, Jr., General Counsel of the National Labor Relations Board (NLRB), asserted that McDonald’s, USA LLC (McDonald’s USA)—the franchisor of the McDonald’s system—may be liable as a “joint employer” for alleged unfair labor practices of individual franchisees.

Your product teams surely have already finalized their lineup of holiday winners, the new gizmos and must-have widgets that you hope end up on everyone’s wish lists.

Previously, a logo registered in black and white was considered sufficient to protect versions of the logo in any color, but this is not necessarily true for European Union (EU) Community Trade Marks (CTM). Under the new rule, logo trademarks filed in black and white or greyscale might not protect the same mark in color.

As retailers prepare for the upcoming holiday shopping season, Perkins Coie’s Retail & Consumer Products industry group is proud to introduce its 9th annual “Perkins Coie Wrapping Papers.” These updates will highlight some of the legal issues retailers face during this critically important holiday shopping season.

The Seattle employment community is abuzz about the prospect of a $15 minimum wage for all Seattle employees, which would make it the highest minimum wage in the nation.

The Federal Trade Commission (FTC) recently investigated whether Cole Haan’s “Wandering Sole” social media contest violated Section 5 of the FTC Act, which prohibits deceptive practices.

The FCC last week issued two declaratory rulings interpreting the Telephone Consumer Protection Act (TCPA).  While the rulings in each are limited to the specific requests set forth in the petitions, they include broad language and reasoning that will be helpful for businesses looking for ways to reach their customers without running afoul of the TCPA.

Earlier this week, the federal Occupational Safety and Health Administration issued the news release, “Crowd Management Measures Are Critical During Major Sales Events,” and sent a reminder to major retailers and retail associations about the need to take precautions to prevent employee injuries during major sales events.

Facebook recently updated its Promotion Guidelines to ease restrictions on conducting contest and sweepstakes promotions on the Facebook platform.  Facebook previously required promotion sponsors to administer promotions through apps and restricted sponsors’ use of basic Facebook functions, such as a "like" or a message to a sponsor’s Facebook Page, in connection with a promotion.

With the holiday season quickly approaching, it’s a particularly good time to check your internal procedures. As you are certainly aware, a disappointed customer, or worse, an injured user, can assert claims against manufacturers, distributors and retailers, among others, in many U.S. jurisdictions. In this increasingly global economy, it can be more difficult than ever to make sure you are properly and fully protected against these types of risks.

On October 16, 2013, new rules promulgated by the Federal Communications Commission on June 11, 2012 implementing the Telephone Consumer Protection Act of 1991 go into effect regarding the requirements for prior written consent necessary to send text/sms marketing messages.

In December 2012, the Federal Trade Commission (FTC) adopted final amendments to the Children's Online Privacy Protection Act (COPPA) Rule, which regulates how companies may collect information online from children under 13.  Last month, the FTC also issued an updated set of Frequently Asked Questions regarding the revised COPPA Rule.  The revised COPPA Rule went into effect today, July 1, 2013, and will impact "operators" of certain websites and online services for a long time to come.

Are you contemplating dressing up your trademarks for the holidays? Adding a jaunty Santa hat and garlands to your company name on your website and shopping bags? Animating your logo to spin like a dreidel or fly like Rudolph? Maybe adorning your word marks with candy cane stripes? Using your trademarks to embrace the holiday spirit can freshen your brand image, infuse it with energy and differentiate it from your competitors.

Many businesses in Oklahoma have been impacted by the devastating tornado that hit that state on May 20, 2013.  Early estimates indicate the tornado caused upwards of $2 billion in damage.  Numerous national and local businesses and other entities, ranging from retailers to schools and hospitals, reported significant damage and an interruption in their business operations due to the tornado.

Two new criminal laws underscore the value of trade secrets as a critical asset to a corporation.  These new laws, the Trade Secrets Clarification Act (TSCA) and the Foreign and Economic Espionage Penalty Enhancement Act (FEEPEA), have increased the criminal penalties for stealing trade secrets, including fines in excess of $10 million.

This is the latest opinion in the ongoing litigation arising out of a massive data breach suffered by Hannaford Bros. grocery stores. In re Hannaford Bros. Privacy Litigation, __F. Supp. 2d __, Case No. 2:08-MD-1954-DBH, 2013 WL 1182733 (D. Me. Mar. 20, 2013).

On April 3, 2013, the New York Times published an article about commercial databases that contain reports from retail employers about employees who were accused of stealing from their workplaces.

To address a perceived gap in regulatory treatment of increasingly popular virtual currencies, including Bitcoin, the U.S. Department of the Treasury Financial Crimes Enforcement Network (FinCEN) released new guidance on March 18, 2013.

The U.S. Supreme Court unanimously ruled in Standard Fire Insurance Co. v. Knowles, 568 U.S. __, No. 11-1450, 2013 WL 1104735 (Mar. 19, 2013), that plaintiffs attempting to bring a class action lawsuit cannot escape federal jurisdiction by agreeing to seek less than $5 million in damages.

Supply chain compliance is on the government’s enforcement radar like never before.  If the recent Executive Order on Trafficking in Government Contracts and final SEC Conflict Minerals Rules were not notice enough, the Department of Justice’s  (DOJ’s) February 20, 2013 announcement of headline-grabbing charges against the two largest domestic honey processing companies eliminates any doubt that companies must carefully examine the effectiveness of their existing supply chain compliance programs.

The Supreme Judicial Court of Massachusetts recently held that collecting a consumer's ZIP code at the point of sale may violate Massachusetts General Laws Chapter 93, Section 105(a) (Section 105(a)), which restricts the ability of retailers to collect personal identification information (PII) from consumers in connection with a credit card transaction.

The Internet Corporation for Assigned Names and Numbers (ICANN), which is charged with enabling and securing the Internet, has been hard at work on a significant expansion project.

A recent $8.1 million verdict in a trademark and trade dress infringement action is an emphatic reminder that businesses of all sizes should protect their trade dress as well as their trademarks. 

The California Supreme Court recently issued a landmark ruling in Apple Inc. v. Superior Court (formerly Krescent v. Apple Inc. in trial court proceedings), a case with wide-reaching implications for consumer privacy in e-commerce. The issue before the Court was whether California’s Song-Beverly Credit Card Act (the Act), which generally prohibits retailers from collecting or requesting personal identification information (PII) as a condition of accepting credit card payments, should apply to online retailers.

As more countries join the Madrid Protocol System for the International Registration of Marks (Madrid System), trademark owners should be sure to take full advantage of this trademark registration option.  There are now 89 members of the Madrid System.  Significantly lower application and maintenance costs, as well as streamlined portfolio management options, are just a few of the reasons why the Madrid System is advantageous for trademark owners.

Federal law and most states only require one party to a phone call to consent to recording it, which means the person recording the call doesn’t need anyone else’s permission; however, a minority of states, including California, require all parties to a call to provide consent.  While you might think you are safe if you do the recording in a one-party consent state, like Georgia, California’s highest court has made clear that California law will apply no matter where you are located if you do business in California and record a call with a California client.  Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95 (2006).

In the waning days of 2012, the National Labor Relations Board (NLRB) issued several game-changing decisions that are important to all private sector employers—both union and nonunion.

Companies that accept online credit card payments should be keeping an ear very close to the ground for the California Supreme Court’s decision in Apple v. Superior Court (Krescent), expected within the next few weeks.  Depending on how the court rules, the case has the potential to spawn a flood of class actions against online retailers and change the way web payments are processed.

On January 4, 2013, the Food and Drug Administration (FDA) issued two long-awaited proposed rules implementing important aspects of the 2011 Food Safety Modernization Act (FSMA). These rules are intended to help prevent foodborne illnesses by ensuring stricter and more effective preventive and protective measures in key areas of the food supply chain. On January 9, 2013, the FDA issued fact sheets providing summaries, background and highlights of the proposed rules.

On January 1, 2013, all employers with employees in California who are paid by commission will be required to have written contracts with those employees.  This law is a significant departure from the previous law, which only required employers based outside of California to have written contracts with their commissioned employees.

Mobile point-of-sale payment terminals have experienced explosive growth over the past year.  Unlike a traditional point-of-sale terminal, a mobile terminal communicates wirelessly when processing payment cards.  There are different types of solutions in the market, but one popular type is an application within a mobile device, like a smartphone or tablet, that uses a hardware attachment to swipe payment cards.

In a ruling that will impact certain aspects of how companies handle their SMS/text message promotional programs, on November 29, 2012, the Federal Communications Commission released a Declaratory Ruling regarding the Telephone Consumer Protection Act (TCPA) pursuant to a request by SoundBite Communications, Inc.

For the first time, online retail sales exceeded $1 billion on Black Friday and reached nearly $1.5 billion on Cyber Monday this year.  Analysts expect this increase in e-commerce to continue, and Forrester Research estimates that online sales this holiday season will exceed $68.4 billion—a 15 percent increase over 2011.

On November 9, 2012, the U.S. Supreme Court agreed to consider the enforceability of a class action waiver clause in agreements between American Express and merchants that accepted its cards. The merchants filed a proposed class action suit against Amex, alleging that its “Honor All Cards” policy—which required stores to accept Amex’s charge cards as well as its credit cards—violated federal antitrust law.

Whether “Corporate Social Responsibility” (CSR) is a new phrase to your company or is something you have observed and worked on for years, these are perilous times indeed for companies with large, complex, global supply chains.

On September 25, 2012, President Obama signed a groundbreaking Executive Order designed to strengthen protections against trafficking in persons in federal contracting.

Retailers and others in the chain of distribution can and should take steps to reduce their exposure to product liability claims.

Retail property owners and retailers alike are always looking for ways to increase their revenues in a cost-effective manner, especially during the holiday season when a large percentage of a retailer's profits are typically earned. 

This Client Update was republished in Retail Law Strategist - Volume 12, Issue 4, Winter 2012

In the holiday rush, it's easy to overlook wage-hour issues.  This Wrapping Paper discusses common ones to which you should be alerted.

Those working in today's in-house law departments or supervising global supply chains and third-party business partners have become sensitive to the significant dangers posed by not complying with the U.S. Foreign Corrupt Practices Act (“FCPA”).  The well-publicized recent events surrounding Wal-Mart's FCPA woes have only raised already-elevated anxiety levels.

Earlier this year, Washington state legislators unanimously passed the nation's first criminal law requiring age verification for commercial sexual services advertisements depicting minors. The landmark law's goals are laudable, but its broad reach has some on-line service providers and traditional publishers concerned. For example, on-line service providers that allow users to post content and images on their sites, including on social networking sites, dating sites, discussion forums, blogs and chat rooms, could now face criminal exposure, even if they have absolutely no interest in placing, or permitting the placement of, such ads.

In the wake of the recent negative publicity deluge, including a segment on a national newsmagazine show, alleging labor violations including the use of child labor, safety violations and unfair pay practices, late last week Apple released a third-party report detailing problems and proposed solutions at one of its largest suppliers.

Several class action complaints filed in recent months take a novel approach regarding the requirements for website privacy policies under California's "Shine the Light" law.

The California Transparency in Supply Chains Act of 2010 went into effect January 1, 2012.  The Act requires retail sellers and manufacturers to disclose what efforts, if any, they are taking to eliminate forced labor and human trafficking from their supply chains.

After nearly two years of comments, the FCC issued its Report & Order updating its Rules implementing the Telephone Consumer Protection Act pursuant to the January 2010 Notice of Proposed Rulemaking.

The European Commission's proposed "Regulation on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data" offers a significantly higher level of legal harmonization and predictability across Europe, but at the price of more stringent requirements and availability of stricter sanctions.

NBC, FOX Broadcasting and other defendants reached a multi-million dollar settlement with plaintiffs in multiple California class action lawsuits alleging that American Idol and Deal or No Deal SMS sweepstakes were illegal lotteries.

On January 6, 2012, the U.S. District Court for the Central District of California dismissed with prejudice Mehrens v. Redbox Automated Retail, LLC, a putative class action against Redbox alleging that Redbox violated California's Song-Beverly Credit Card Act by requesting ZIP codes and email addresses in connection with credit card transactions.

On July 26, 2011, FinCEN issued the Final Rule. The Final Rule applies regulations regarding money service businesses ("MSBs") to “providers” and “sellers” of "prepaid access."  The Final Rule became effective on September 27, 2011.

Increased store traffic, the shift in management's attention to keeping stock available and the barrage of seasonal employees create an environment ripe for crimes of opportunity such as employee theft.

The winter holiday season poses high sales potential for most retail companies.  Your designers and marketing groups are likely already hard at work developing products and advertising campaigns to take advantage of the season and its opportunities.  But this is also a good time to remind yourself and your design and marketing personnel to ensure that your products and advertising do not infringe on someone else's intellectual property.

California, standing alone, has the eighth largest economy in the world, with a gross state product of nearly $2 trillion in 2010. It is no surprise that the state is an irresistible market for many leading (and emerging) companies with significant workforce populations. But California is also one of the most perilous jurisdictions for employers, featuring a harsh, unforgiving and sometimes unexpectedly quirky regulatory environment, all enforced by a large population of zealous plaintiffs’ lawyers. Doing business in California can be perilous indeed.

The Perkins Coie Retail & Consumer Products industry group announced a new initiative earlier this year to survey our retail and consumer products industry clients periodically on legal issues and to report to our clients the results with related commentary.

Music and holiday shopping go hand-in-hand.  Chances are, your final plans for holiday-themed décor, events and websites will all involve music.  This wrapping paper is designed to help your creative team design and implement a music protocol that protects intellectual property ("IP") rights without breaking your holiday budget.

Governor Brown recently signed several bills significantly impacting employers in California. These new laws were wide ranging and covered many diverse issues, including: limiting an employer’s use of consumer credit reports, barring discrimination on the basis of gender and sexual identity, imposing stiff penalties for employers who willfully misclassify employees as independent contractors, extending healthcare coverage to employees taking Pregnancy Disability Leave, and employment contract requirements for certain employees earning commission-based compensation.

There have been many recent changes in the world of domain names.  This is the fourth in a series of updates on these issues.  It is intended to keep you informed about issues that are important to brand owners and any others with a significant web presence.

On July 26, 2011, the Financial Crimes Enforcement Network of the Department of the Treasury ("FinCEN") issued a final rule amending the Bank Secrecy Act's regulations and establishing comprehensive regulatory requirements for prepaid access ("Final Rule").

All of the tools and tricks you will use this holiday season to catch consumers' eyes and capture their dollars will likely involve intellectual property (IP) rights. New products (patents? copyrights?) with catchy names (trademarks?) and bright packaging (trade dress?) supported by huge advertising campaigns (more copyrights?) are distributed through new channels to attract new customers (trade secrets?). You've registered your trademarks and copyrights and thought about whether you have any patentable inventions. But your IP rights are implicated in many other areas of your business, especially during the holiday season.

On October 1, 2011 a new Federal Reserve Board Final Rule implementing the “Durbin Interchange Amendment” to the Dodd-Frank Act will go into effect.

In a matter of months, the amount of "Internet real estate"—which has been static for the past several years—will expand dramatically. Companies, organizations, cities and others will be able to apply to ICANN to launch new domain spaces using brand names (for example, .nike), generic terms (such as .shoes) and locations (such as .nyc).

The U.S. Supreme Court issued its opinion in the long-awaited Wal-Mart v. Dukes decision yesterday. The Court's decision is good news for employers as it will make it more difficult for plaintiffs to pursue large class actions against employers.

Following the recent California Supreme Court’s decision in Pineda v. Williams-Sonoma Stores, Inc., 2011 WL 446921 (Cal. Feb. 11, 2011), numerous class action lawsuits have been filed under the Song-Beverly Credit Card Act of 1971, Cal. Civ. Code §§ 1747 et seq. ("Credit Card Act"), a state statute designed to protect the personal privacy of credit card users.  These lawsuits expose California businesses to considerable defense costs and the potential for substantial damages.  Law360 reports that in the wake of this ruling at least 30 proposed class actions have been filed in California, and many more are on the way.  That’s the bad news. The good news is that these claims may be covered under your Commercial General Liability ("CGL"), Errors and Omissions ("E&O"), or Directors and Officers ("D&O") Liability insurance policies.

On February 10, 2011, the California Supreme Court held that a customer's ZIP code is "personal identification information" ("PII") under the California Song-Beverly Credit Card Act of 1971 and that businesses cannot request and record a customer's ZIP code during a credit card transaction.

The Chinese government is in the midst of a six-month Intellectual Property Rights Campaign (“IPR Campaign”) that could provide some much needed help to businesses struggling with intellectual property (“IP”) infringement in China.  The IPR Campaign aims to reduce IP violations related to all types of IP, including copyrights, trademarks and patents.

On June 29, 2010, New Jersey enacted Assembly Bill 3002, which substantially revised the state’s unclaimed property laws.[1]  Many of these revisions directly impact issuers of “stored value cards,” which broadly includes paper gift certificates, gift cards, rebate cards, and other products.[2]  This white paper discusses AB 3002’s requirement to collect consumer names, addresses and zip codes and the abandonment period for stored value cards.

In late 2010, the Restore Online Shoppers' Confidence Act, (ROSCA), passed in both chambers of Congress and, on December 29, 2010, was signed by the President. ROSCA will become law once final administrative actions are complete. The Act contains two primary prohibitions: (1) it prohibits and prevents Internet-based post-transaction third party sales and (2) it imposes specific requirements on negative option features.  The relevant terms and provisions are summarized in more detail below.

On December 16, 2010, the Federal Reserve issued a proposed rule under Section 1075 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.  Section 1075, popularly known as the Durbin Amendment, requires debit-card interchange fees to be “reasonable and proportional” to the cost of the transaction and is widely considered to be a major victory for merchants. The Federal Reserve seeks comment on two alternative standards for determining whether a fee is “reasonable and proportional." It is important to note that these proposed alternatives only apply to debit-card transactions and not to credit-card transactions or certain prepaid cards.

Many companies might be surprised to learn that the difficult to control acts of their foreign agents, intermediaries, consultants, joint venture partners, suppliers, distributors and even outside counsel, private equity portfolio companies and franchisees can result in—and, in fact, have resulted in—potentially devastating civil and criminal Foreign Corrupt Practices Act (FCPA) liability to the principal or parent company . . . even absent any evidence of the company’s actual knowledge of this misconduct. And all indications are that the government will ramp up its reliance on such third-party liability as we move into 2011 and beyond. This update examines the growing threat of third-party liability and how clients can, through precautionary steps tailored to the particular circumstances of the company, effectively fend off the potentially catastrophic effects of third-party liability.

Consumers crave environmentally friendly products and services, so naturally advertisers weave "green" messages into advertising, using "eco-friendly" words, images, brand names, logos and certifications. But making false or misleading green claims can trigger legal challenges that result in a wide range of penalties and negative publicity.

When consumers type your brand names into an Internet search engine this holiday season, do you expect that your website or the stores that sell your product would be at the top of the results list?  They might.  But the first link could direct those consumers to your fiercest competitor's site.

Collecting the right retail sales tax is sometimes a difficult task, but the government should not intentionally make it harder.  Unfortunately, because of a recent change in the law, retailers with operations in Washington state faced a confusing and uncertain tax environment, made worse by an unfortunate injunction obtained by the City of Bellingham and Whatcom County.

On June 30, 2010, the House of Representatives approved the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Financial Reform Act, a comprehensive and expansive set of financial reforms widely thought to be the toughest changes to financial regulation in the United States since the Great Depression.

On June 30, 2010, the House of Representatives approved the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Financial Reform Act, a comprehensive and expansive set of financial reforms widely thought to be the toughest changes to financial regulation in the United States since the Great Depression.

On July 6, 2010, the Federal Reserve's Regulation E prohibition of overdraft fees will take effect. From then on, financial institutions will no longer be able to charge a fee when a consumer overdraws a checking account by making a debit card purchase or requesting an ATM withdrawal for an amount that exceeds the consumer's available funds, unless the overdraft service is expressly authorized by the account holder.

The IRS recently issued Revenue Procedure 2010-14, which provides long-awaited guidance for taxpayers whose deferred like-kind exchange of relinquished property would be non-taxable under Section 1031 of the Internal Revenue Code but for the failure of the qualified intermediary ("QI") to acquire and transfer identified replacement property due to the QI's insolvency proceedings.

"Points," "coins," "bucks" and other forms of virtual currency are becoming standard offerings for online game sites, social media sites, retailers and other businesses. Virtual currency systems generate revenue, provide low-cost alternatives to credit cards for micropayments, offer prepaid solutions appealing to youth and other users without credit cards, and help companies build attractive loyalty programs.

Product endorsements and testimonials are one of the most effective and powerful advertising techniques used by retailers.  As a result, the Federal Trade Commission (FTC) has for years regulated such advertising in traditional media—television, radio and print.

If you are a retailer with brick-and-mortar stores in California and accept credit cards for payment, take note.  You may want to take a few simple steps to avoid liability for an increasing number of claims under an old law that has received a lot of recent attention.

The Holiday season this year carries with it not only high hopes for successful sales but the threat of widespread – and increasing – influenza outbreaks. Retailers are uniquely threatened by the flu: sales personnel are routinely exposed to hundreds of shoppers in close quarters, shaking hands, handling merchandize, and exchanging cash. But careful planning can help minimize the impact on your sales force.

Environmentally friendly advertising claims effectively grab the attention of consumers hungry for "green" products and services. But as you prepare your holiday advertising, there are several things to keep in mind if you are making "green" claims.

Remember the hype surrounding Tickle Me Elmo in 1996, Sony's Playstation in 1995 and, if you're old enough, the Cabbage Patch Kids in 1986?  Each holiday season features new "must-have" gifts—that toy your child just cannot live without or that next generation video game or console or that one special pair of boots.

This month, Congress will begin to address the proposed Consumer Financial Protection Agency Act of 2009, known as the CFPAA, which is one piece of the dramatic financial regulatory reform that Barney Frank, Chairman of the House Financial Services Committee, introduced in July 2009.

A center with a high vacancy level will likely experience a significant drop-off in holiday shoppers visiting the center, so you need to be proactive to minimize the impact.

Perkins Coie was a sponsor of the 2022 ANA/BAA Marketing Law Conference.

This program addressed utilizing technology and contracts to navigate supply chain challenges in the retail and real estate sectors.

This Privacy for Retail roundtable discusses the new California Privacy Rights Act (CPRA) and its impact on the retail industry.

Join us Wednesday, March 25, 2020, as we address how recent actions may affect the possibility of insurance coverage for business income losses under property policies. Coronavirus loss estimates now exceed $4 trillion and continue to rise.

As U.S. officials encourage Americans and American companies to prepare for, and as some companies are already dealing with significant disruptions to their daily routines, employers need to keep in mind the current state of applicable employment laws when implementing a response.

What you need to know now about your current coverage and what you need to know now to protect your company at renewal.

Topics discussed include understanding brand value, navigating state and federal law, and the value of M&A as a finance tool in the alcohol industry.

In the past 19 years, more than 750 companies have sent employees to a Perkins Coie Product Liability Workshop.

Please join us for our 19th Annual Product Liability Workshop.   In the last 18 years, more than 750 companies have sent employees to a Perkins Coie Product Liability Workshop.