Hunton Retail Law Resource

The results are in: attorneys are filing more employment law cases in court.  Indeed, year-end reporting from legal databases like LexMachina confirm that the pace of filing new employment discrimination cases reached its highest level in 2025, surpassing 20,000 new filings nationwide.  Though overtime and minimum wage lawsuits under the Fair Labor Standards Act (FLSA) have continued to decline since 2015, discrimination cases under laws like Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act are on the rise.

On February 26, 2026, the California Air Resources Board (CARB) voted to adopt staff’s proposed initial implementing regulations for California’s climate emissions disclosure and climate‑related financial risk reporting statutes—Senate Bill 253 and Senate Bill 261—both enacted in 2023.

The past year saw the California Air Resources Board (CARB) grapple with implementation of California’s climate disclosure laws, SB 253 (Climate Corporate Data Accountability Act) and SB 261 (Climate-Related Financial Risk), both of which were enacted in 2023 with first compliance deadlines in 2026.

Pay transparency laws, which require employers to include pay information in job postings, have been on the rise. Colorado and California enacted such laws in 2021 and 2023 respectively.  In 2025, several states have decided to join California and Colorado by enacting or expanding pay transparency laws.

Over the past few years, retailers and online businesses with California-accessible websites have been forced to grapple with the California Invasion of Privacy Act (CIPA)—a statute originally designed to protect telephonic communications but now frequently invoked by the plaintiffs’ bar in connection with online tracking technologies.

On September 26, 2025, the California Privacy Protection Agency (“CPPA”) issued a $1.35 million fine against Tractor Supply Company (“Tractor Supply”), the largest rural lifestyle retailer in the United States, for CCPA violations.

New York recently passed legislation regulating the use of algorithmic pricing using personal data and the operation of AI companions.

Notwithstanding the FDA’s finding that “[c]urrent scientific evidence does not demonstrate that levels of microplastics or nanoplastics detected in foods pose a risk to human health,” the plaintiffs’ bar steadfastly continues to file class action lawsuits claiming otherwise.

A Delaware court recently held in Mattel, Inc. and Fisher Price, Inc. v. XL Insurance America, Inc., et al., that a series of product liability claims dating back to 2013 constituted a single “occurrence” under the toy manufacturer’s and distributor’s commercial general liability (CGL) policies.

On May 6, 2025, the California Privacy Protection Agency announced that it had issued an order requiring clothing retailer Todd Snyder, Inc. to change its business practices and pay a $345,178 fine to resolve alleged violations of the California Consumer Privacy Act.

Democratic State Senator Anna M. Caballero introduced Senate Bill 690 (S.B. 690), which aims to curb “abusive lawsuits” under the California Invasion of Privacy Act based on the use of cookies and other online technologies, on February 24, 2025, and the Bill is now scheduled to be heard by the Senate Public Safety Committee on April 29, 2025.

The Children’s Advertising Review Unit of BBB National Programs (CARU) announced a decision involving Buddy AI, a program that touts itself as an “Early learning AI teacher.” According to CARU, which encountered Buddy AI as part of its routine monitoring efforts, the app and website did not comply with the federal Children’s Online Privacy Protection Act (COPPA) or CARU’s children’s privacy guidelines.

On February 4, 2024, California legislators introduced a bill, the Fashion Environmental Accountability Act (AB 405), which would require fashion brands to disclose their environmental impact, carbon emissions, water use, and waste. The proposed regulation would apply to brands with total annual revenue over $1 billion and that do business in California.

The use of Artificial Intelligence (“AI”) in the workplace has spread rapidly since President Trump left the White House in early 2021.  In recent years, retail employers have started using AI technology in a variety of ways from automating tasks, to implementing data-driven decision making, to enhancing customer experience.  Though the Biden administration started to grapple with the use of AI in the workplace, the second Trump administration could mark a dramatic shift in the federal government’s response to these issues.

In a recent decision, the National Advertising Division (NAD) of BBB National Programs recommended that Revolve Group, Inc., a clothing company with an extensive influencer network, modify influencer posts to more clearly disclose the material connections between Revolve and influencers in its product gifting program.

In February 2024, we posted about the USPTO’s Inventorship Guidance for AI-assisted Inventions and how that guidance might affect a retailer in New USPTO AI-Assisted Invention Guidance Will Affect Retailers and Consumer Goods Companies. With a year now having passed, it is likely you have questions about the guidance.

Following a September 2024 report outlining findings from public income disclosure statements of multi-level marketers (MLM), the FTC announced on January 13, 2025 two Notices of Proposed Rule Making (NPRM) and one Advanced Notice of Proposed Rulemaking (ANPRM) focused on multi-level marketing programs and money-making opportunities. The Commission voted 3-2 along partisan lines to issue these three notices. The proposals would enable the FTC to seek enhanced penalties from covered companies making deceptive earnings claims.

We have written here about the work of the NAD, the National Advertising Division of BBB National Programs. The NAD offers independent self-regulation and dispute resolution services for members of the national advertising community. NAD examines advertising to determine whether the evidence provided by the advertiser fully supports the advertising claims at issue in an NAD review. NAD’s findings and recommendations are detailed in a final written decision and outlined in an accompanying press release.

The FDA has announced a proposal to require a new nutrition label on the front of packages for most packaged foods. The label design, shown below, would give consumers readily visible information about a food’s saturated fat, sodium, and added sugars content—three nutrients the FDA states are directly linked with chronic diseases when consumed in excess. 

The FTC has penalized accessiBe Inc. $1 million for claiming its “AI-powered web accessibility solution” can make websites fully compliant with WCAG (Web Content Accessibility Guidelines).  According to the FTC’s complaint, accessiBe claimed its “one line of code” made a website compliant with 30% of WCAG’s requirements immediately and initiated an AI process that makes the website fully compliant with the remaining 70% of WCAG requirements within 48 hours.

The Children’s Advertising Review Unit (CARU) has recommended that Just Play LLC revise its advertising for Daisy the Yoga Goat toy, a plushie that “moves her head, swishes her tail, drinks from her play water bottle, and does downward dog and bird yoga poses.” In its press release about the decision, CARU noted that the 15 second commercial and product packaging could mislead children about what is included with product purchase, how to activate the toy and use it as shown, and misrepresented that the toy could perform in a particular manner. For example, the ad showed Daisy the Yoga Goat with a yoga mat and a water bottle, and implied that they toy’s movement and reactions are automatic. 

The Federal Trade Commission announced a penalty against online sneaker retailer GOAT for failing to honor its “Instant” and “Next Day” shipping guarantees. According to the FTC’s complaint, GOAT also violated its “Assurance of Authenticity” and “Buyer Protection” promises, rejecting or only partially crediting customers for defective products.

We recently posted an article on Hunton’s Privacy & Information Security Law Blog on a newly issued federal district court opinion citing that New York City’s “Consumer Data Law” violated the First Amendment and the regulation of commercial speech.  A federal judge declared the municipal law requiring food-delivery companies to share customer data with restaurants unconstitutional.

The FTC has settled a case with a company operating an artificial intelligence-enabled “writing assistant” service. Among the use cases Rytr LLC offered was one that would craft testimonials and reviews, allowing users to select desired tone (e.g., “formal,” “funny,” “convincing”), keywords and phrases, level of creativity (e.g., “optimal,” “high,” “max”), and the number of reviews sought. Based on this user input, Rytr’s AI service would then generate genuine-sounding, detailed reviews quickly and with little user effort.

In California, shoppers will no longer be offered plastic bags at the grocery store checkout. Under a new law, effective January 1, 2026, single-use shopping bags are banned from any point of sale. This includes bags made from plastic, paper, or other materials that are not recycled paper or certified reusable bags. However, the ban does not apply to bags used before the point of sale, such as produce bags and overwrap for fresh meat.

On August 2, 2024, Illinois amended its Biometric Information Privacy Act (BIPA), curbing the potential for massive damages and modernizing the law’s written consent provisions. On their face, the amendments are not retroactive.  It remains unclear, however, whether this change in Illinois law will nonetheless be applied retroactively by the courts.

Fake reviews and testimonials for services and products have been under the watchful eye of the Federal Trade Commission (FTC) for decades. With the proliferation of online bots and generative Artificial Intelligence (AI) tools, reviews and testimonials have been even easier to fake in recent years. On August 14, 2024, the FTC announced the Final Rule on the Use of Consumer Reviews and Testimonials, prohibiting fake reviews and testimonials from being sold or purchased by businesses. Importantly, the Final Rule enables the FTC to seek civil penalties against knowing violators.

In February, we posted about the USPTO’s Inventorship Guidance for AI-assisted Inventions, 89 Fed. Reg. 10043 (Feb. 13, 2024), and how that guidance might affect a retailer in New USPTO AI-Assisted Invention Guidance Will Affect Retailers and Consumer Goods Companies.

The Children’s Advertising Review Unit (CARU) of BBB National Programs recently announced it completed an investigation into Kidgeni, a generative artificial intelligence (AI) art creator website designed for children. CARU’s determined that Kidgeni is directed to children under 13 and is not in compliance with the Children’s Online Privacy Protection Act (COPPA) or CARU’s Privacy Guidelines.

What if courts used artificial intelligence (AI) to determine the plain meaning of undefined terms, including terms in insurance policies? Eleventh Circuit Judge Newsom ponders that very question in his concurring opinion in Snell v. United Specialty Insurance Company, decided May 28, 2024. In a recent Hunton Insurance Recovery Blog post discussing the intersection of AI and insurance, insurance coverage partner Michael S. Levine and associate Alex D. Pappas unpack Judge Newsom’s concurring opinion. In doing so, they not only discuss the pros and cons of using AI to discern the plain meaning of certain words and phrases, but they discuss whether AI can answer a vexing question on the minds of insurers and policyholders alike: what is AI and how should it be defined?

On May 2, 2024, the Federal Circuit issued a decision ruling that initiation of an e-commerce website’s procedure to evaluate patent infringement claims subjects the initiating party to personal jurisdiction in the alleged infringer’s home state. Retailers and consumer products companies may wish to consider the possibility of ending up in federal court in a non-preferred venue prior to using one of these programs.

The Children’s Advertising Review Unit (CARU) of BBB National Programs issued a new compliance warning aimed at addressing the use of artificial intelligence (AI) in advertisements and data collection efforts targeted at children. The warning emphasizes that CARU will “strictly enforce” its Advertising and Privacy Guidelines for advertisers, brands, influencers and manufacturers that utilize AI in marketing and data collection involving children. The warning specifically highlights CARU’s concerns about the risks of AI in connection with the susceptibility of children to marketing that fails to distinguish between what is real and what is not.

On April 1, 2024, California’s Assembly Bill No.1228 (“AB 1228”) took effect, making the state’s fast food workers the highest paid in the United States. However, uncertainty regarding precisely who is covered under the new law has left some employers reeling, as the stakes for complying with California’s Labor Code remain as high as ever.

In the realm of commercial leasing, the fine print of contracts can often hold significant consequences for both landlords and tenants. One area where contention often arises is with exculpatory clauses, which routinely aim to absolve landlords from responsibility for injuries or damages suffered by tenants or third parties, even if those harms result from the landlord’s negligence or failure to maintain premises adequately. However, the efficacy of exculpatory clauses becomes blurred when confronted with hazards such as asbestos, a notorious carcinogen found in many older commercial buildings, including some retail properties.

Artificial intelligence (“AI”) is often touted as the latest transformative technology set to revolutionize the commercial real estate industry. This may seem like grandstanding, but the hype is real. AI is already being implemented by law firms and their clients to streamline business processes. AI, however, is ultimately a tool and whether tools make our lives easier or harder often depends on if we use them safely. This blog post examines some of the ways in which AI is used in commercial real estate and potential pitfalls with broad implementation.

In a speech before the Yale Law School February 2024, SEC Chair Gary Gensler had AI top of mind. Interrupted only by a colorful collection of movie references, Chair Gensler focused almost the entirety of his remarks on AI and the SEC’s corresponding regulatory duties. Chair Gensler addressed the risks associated with AI while cautioning reporting companies to avoid “AI washing” and making boilerplate AI disclosures that are not particularized to the company. The speech nicely underscores the SEC’s two-fold, and at times juxtaposed, concerns about the important emerging technology.

Virginia is currently one of just two states, along with Mississippi, without state-court class actions. But in the most recent legislative session, the General Assembly passed Senate Bill 259, which would create a class action mechanism in Virginia state courts. Under Virginia law, the governor can sign the bill, veto it, do nothing (which permits it to become law)—or he can propose amendments to the bill, which would then be sent back to the General Assembly at the “veto session” in April. The governor could veto the bill—or, in the alternative, he could propose an amendment to protect Virginia businesses from the threat of outrageous statutory damages claims under the Virginia Consumer Protection Act.

In our client alert, A Brief Explanation of the USPTO’s Useful New AI-Assisted Invention Guidance, we discuss the Inventorship Guidance for AI-assisted Inventions, 89 Fed. Reg. 10043 (Feb. 13, 2024), recently released by the US Patent and Trademark Office (USPTO). The guidance provides inventors and patent applicants with a framework regarding AI-assisted inventions and how inventorship of such will be judged at the USPTO. Why should a retailer care?

In recent years, consumers filed a spate of class actions claiming that retailers misrepresented the retail price on discounted goods to mislead consumers into thinking they were obtaining a bargain. Many of those cases settled or were dismissed for lack of injury because plaintiffs failed to allege that the purchased item was deficient in an objectively identifiable way.

Our 2023 Retail Industry Year in Review provides a comprehensive overview of recent developments, issues, and trends impacting retailers, as well as a look ahead at what to expect in 2024. We hope you will take a few minutes to review our new publication released last week.

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On December 13, 2023, New York Governor Kathy Hochul signed Senate Bill S1048A into law requiring sellers that impose credit card surcharges to post the total price, inclusive of the surcharge. In addition, the surcharge to customers may not exceed the amount of the surcharge charged to the business by the credit card company for such credit card use. Per the legislative history, “This bill is necessary to prevent consumers from being misled when making a purchase using their credits cards.”

Earlier this month, a Pennsylvania federal judge held that users of Bass Pro Shops’ and Cabela’s websites lacked Article III standing to sue the retailers for use of “session replay” software, where the users failed to allege that the software captured their personal information, such as financial data or medical diagnosis information.  In Re: BPS Direct, LLC, and Cabela's, LLC, Wiretapping, No. 2:23-md-03074 (E.D. Pa. Dec. 5, 2023).  

Last week, the FTC sent high profile warning letters to two trade associations, the American Beverage Association (AmeriBev) and the Canadian Sugar Institute, and 12 registered dieticians regarding inadequate disclosures in the dieticians’ social media posts. While the specific influencer posts varied across dietician, they all related to the safety of aspartame, an artificial sweetener, and other messaging regarding the benefits of consuming sugar-containing products. Further, some dieticians even went so far as to call the World Health Organization’s warnings regarding aspartame and artificial sweeteners as based on “low-quality science” and “clickbait” evidence. While some of the dieticians included words like “#Ad” or “Sponsored” in their posts, according to the FTC most failed to provide obvious disclosures informing consumers that they were watching an ad that had been paid for by an industry association. The FTC’s warnings alleged that inconspicuous messaging surrounding these partnership deals led to consumer confusion regarding who ultimately was responsible for the influencers’ nutrition messaging. And according to the FTC, the fact that these influencers are registered dieticians increases the public’s confidence in the information they disperse, thus heightening the need for them to be clear about their partnership affiliations.

On October 7, 2023 California Governor Gavin Newsom signed two landmark climate disclosure laws aimed at making major companies publicly disclose their greenhouse gas emissions and report on their climate-related financial risks. The first, the Climate Corporate Data Accountability Act (SB 253), will require all business entities with an annual revenue exceeding $1 billion to disclose their greenhouse gas emissions in a format accessible to the public. The second, SB 261, will require all business entities with annual revenue exceeding $500 million to publish a report on their “climate-related financial risks” on their websites. These first-in-the-nation laws are broader than the proposed SEC climate disclosure rule and reach more than just California-based entities.

As we reported Friday, the FTC has proposed a rule to ban misleading and hidden fees. While that initiative is pending, California Governor Gavin Newsom signed similar legislation, SB 478, into law. Effective July 1, 2024, the California statute prohibits advertising, displaying, or offering a price for a good or service that does not include all mandatory fees or charges other than taxes or fees imposed by a government on the transaction, or postage or carriage charges that will be reasonably and actually incurred to ship the physical good to the consumer. The legislation takes aim at ...

The FTC announced a Notice of Proposed Rulemaking (NPRM) targeting misleading and hidden fees, commonly known as “junk fees,” and how businesses may advertise and market prices to consumers. The NPRM was drafted based on over 12,000 public comments to the FTC’s Advance Notice of Proposed Rulemaking published in November 2022.

In granting a summary judgment motion on June 16, 2023, the Southern District of Florida Bankruptcy Court developed a new framework to determine the ownership rights to a corporate social media account. The court found that Vital Pharmaceuticals, the manufacturer and seller of “Bang” energy drinks, is the rightful owner of three social media accounts used to market Vital’s products, rather than the company’s former CEO who often posted to the accounts.

As reported on Hunton's Privacy and Information Security Law Blog, on May 31, 2023, the Federal Trade Commission announced a proposed order against home security camera company Ring LLC (“Ring”) for unfair and deceptive acts or practices in violation of Section 5 of the FTC Act.

In 2008, Illinois enacted the Biometric Information Privacy Act (BIPA) to protect individuals’ privacy rights in their biometric information, including retina or iris scans, fingerprint, voiceprint, hand scans, facial geometry, DNA and other unique, identifying biological information. Companies are now paying hundreds of millions of dollars to settle employee and consumer suits for BIPA violations. In a recent Reuters Legal News article, Hunton Andrews Kurth LLP attorneys Syed Ahmad, Rachel Hudgins and Torsten Kracht, discuss what BIPA is, how it applies to ...

For many, the “metaverse” sounds like some obscure sci-fi fantasyland. You may be asking, where is it? How does one get there? Chances are, if you are reading this article on a screen, then you are already interacting with what could be described as the metaverse. And if your business is operating in the metaverse, it is being exposed to new risks that need to be managed. 

The FTC and Attorneys General from seven states announced settlements with Google and iHeartMedia for disseminating thousands of allegedly deceptive endorsements, with the two companies being required to pay $9.4 million in state-levied penalties.

On October 18, 2022, the New York State Department of Financial Services (“NYDFS”) announced that EyeMed Vision Care LLC (“EyeMed”) agreed to a $4.5 million settlement for violations of the Cybersecurity Regulation (23 NYCRR Part 500) that contributed to the exposure of hundreds of thousands of consumers’ health data in connection with a cybersecurity event in 2020.

The Federal Trade Commission and six states have filed suit against Roomster Corp. and two corporate executives, accusing the residential rental listing platform of using fake reviews and unverified listings to generate tens of millions of dollars in business. According to the complaint, these practices often occur at the expense of vulnerable customers who rely on Roomster to find safe low-cost housing within expensive housing markets.

In an August 2022 decision, the California Court of Appeal, Second Appellate District, held that retail websites without any connection to a physical space, such as a brick-and-mortar store, do not constitute “places of public accommodation” and, thus, are not within the purview of Title III of the American with Disabilities Act (“ADA”) or the Unruh Civil Rights Act (the “Unruh Act”). 

In a case sure to send retail pharmacy corporate-types scurrying to board room meetings to ensure their bases are covered, a Northern District of California federal judge held that Walgreens’ Co.’s 15 year-long pattern of filling opioid prescriptions for customers without performing adequate due diligence as to the medical legitimacy of the prescription substantially contributed to the opioid crisis in San Francisco. As a result, Walgreens must—to a degree later to be decided in court—abate the opioid crisis in San Francisco that it helped to create. While the scope of Walgreen’s court-mandated abatement is not yet known, the fact that a retail pharmacy was held to be at least partially liable for the down-the-line harm stemming from its customers’ misuse of the prescriptions it fills is a headline holding, carrying with it the potential to raise the stakes of the everyday retail pharmacy work of filling prescriptions. In good news for other retail pharmacies generally and for Walgreens retail pharmacies in other states, the holding turned on two hinges that could swing the door of liability shut in other scenarios: 1) the habitual, 15 year-long practice of San Francisco Walgreens of skirting the due diligence required of them under the federal Controlled Substances Act (“CSA”), and 2) the application of California-specific nuisance law that many other states have yet to apply in the same way.

CARU, the Children’s Advertising Review Unit of BBB National programs, issued a compliance warning last week reminding industry that the self-regulating body on children’s advertising and privacy intends to enforce its advertising guidelines in the metaverse, just like in the real world.

On August 24, 2022, California Attorney General Rob Bonta announced the Office of the Attorney General’s (“OAG’s”) first settlement of a California Consumer Privacy Act (“CCPA”) enforcement action, against Sephora, Inc.

The Recall Roundup is a monthly survey of regulatory activity affecting the manufacture, distribution, and sale of consumer products.  Subject matter may include the latest product recalls, major federal agency developments, and proposed or new federal rules.  The blog’s goal is to provide an overview, rather than a comprehensive report on every development that could potentially affect businesses or consumers.  Nothing herein constitutes legal advice.  If you have questions or comments about the blog, please reach out to the authors.

Trade dress is a sub-category of trademarks traditionally reserved for product packaging. However, it can also include product design itself if the design elements claimed are distinctive and allow the consumer to recognize a single source as the producer or seller of the goods. Well known product design cases include high heels with contrasting red soles[1], iconic electric guitar shapes[2], and the green color of night-time cold medicines.[3]

In a rare “some assembly required” and “parts not included” decision, the Children’s Advertising Review Unit (CARU), a division of BBB National Programs, scrutinized advertising for Micro Machine toys. CARU determined that Jazwares LLC’s advertising for the toys misled children about what was included in the purchase of the products, what must be purchased separately, and the ease of assembly. CARU also found the ads unrealistically depicted how the toys can perform.

The metaverse is a new way to engage with computers through artificial intelligence (AI), widespread connectivity, augmented reality (AR) and virtual reality (VR). Instead of interacting with a two-dimensional application or website via screen and keyboard, the metaverse adds a figurative “third dimension” for users to explore in an intuitive, realistic manner. The metaverse is also an opportunity for a new digital economy. Users can buy and sell goods, services, and property, and even attend events virtually. Like the Internet before it, the metaverse is expected to lay a foundation for the creation of business, art, and technology.

California’s tough plastic-labeling enforcement is about to get a little stricter.

One of the biggest recent trends in retail may be slowing down.

In the retail industry, staff shortages caused by COVID-19 exposure and positive cases can significantly disrupt business operations, particularly during this time of unprecedented turnover and resignations in the retail labor market.  During this latest surge in COVID-19 cases, retail employers should be aware of recent changes in federal, state, and local guidance related to COVID-19 isolation and quarantine requirements.  On December 27, 2021, the Center for Disease Control and Prevention (CDC) updated their isolation and quarantine recommendations for the general public, including more limited time periods for quarantine and isolation periods.  On December 30, 2021, the California Department of Public Health (CDPH) released updated guidance to conform to the new CDC guidelines but added additional requirements, including testing to exit isolation or quarantine after the fifth day (which the CDC now acknowledges is the “best approach” but does not require as part of its formal guidance).  Notably, the new guidance also introduces a distinction between boosted and non-boosted individuals for the first time.  The key requirements and takeaways from this new guidance are detailed below.

Following the recent trend of retailers abandoning gendered store sections and product lines, California has passed legislation that will force certain large retailers to adopt non-gendered children’s sections in California store locations.

The CPSC’s nine-year saga over magnet sets has finally concluded.  Magnet sets are clusters of small, separable, magnetic balls that a consumer can rearrange into countless shapes.  In 2012, a distributor refused to voluntarily recall the magnet sets, forcing the CPSC to file an administrative complaint alleging that the magnet sets were defective and presented a substantial ingestion hazard to young children.  In 2017, the CPSC concluded that the magnet sets posed a substantial product hazard that cannot be mitigated by package warnings and ordered the distributor to recall the magnet sets.  The distributor sued in federal court to block the CPSC’s order.  After multiple appeals, the Tenth Circuit Court of Appeals ultimately agreed with the CPSC.  Thus, this month the CPSC issued a rare mandatory recall of 10 million magnet sets.  The recall noted that two children who had ingested the magnets from the magnet sets required surgery to remove them and a 19-month-old child died after ingesting similar high-powered magnets.  The CPSC also issued a warning to consumers about the dangers of high-powered magnets, noting that from 2009 to 2018, there was an estimated 4,500 cases of children from 11 months old to 16 years old who were treated in US hospitals for ingestion of high-powered magnets.

The Children’s Advertising Review Unit (“CARU”), a part of BBB National Programs (“BBBNP”), released its revised Children’s Advertising Guidelines earlier this month. These new Guidelines will go into effect in January 2022 and contain some notable changes.

Environmental justice (“EJ”) is a central focus of the Biden administration’s environmental agenda. On Day One in January, the administration emphasized the importance of EJ in the federal government’s efforts to tackle climate change and to address the disparate impact of decisions affecting natural resources. In addition, many states are implementing their own EJ requirements. In the wake of issuance of new and enhanced EJ policies by both the federal government and states, it behooves lawyers in multiple disciplines to account for EJ issues in their legal practice.

In 1973, Congress amended the FTC Act by adding §13(b), giving the Federal Trade Commission (“FTC”) equitable powers to remediate any violation of any law under its purview.  Using that power, the FTC has sought equitable monetary relief, including restitution and disgorgement. The lower courts routinely authorized such relief and Congress seemingly acknowledged the FTC’s power when it reauthorized the FTC Act. Despite those headwinds, today the Supreme Court unanimously held in a highly-anticipated case, AMG Capital Management, LLC v. FTC, that the FTC cannot seek or obtain equitable monetary relief pursuant to §13(b).

During his 2020 campaign, now President Biden promised to raise the federal minimum wage to $15 an hour, something progressives have long been proposing.  The Democratic-held House of Representatives introduced and passed the Raise the Wage Act in 2019, but the bill never reached a vote in the then-GOP controlled Senate.

As we previously reported, new SEC rules requiring reporting on human capital resources will take effect November 9, 2020. The new disclosure is not required to be included in third quarter Forms 10-Q, but publicly-traded retailers should begin the analysis now to assess whether disclosure will be required in Form 10-K, and if so, what will be disclosed in 2020 annual reports to shareholders. Retailers determining that disclosure is immaterial under the federal securities laws may still elect to provide a human capital narrative in corporate sustainability reports, which are not filed with the SEC, in an effort to address increasing stakeholder demand for such information.

Earlier this year, The Retail Equation, a loss prevention service provider, and Sephora were hit with a class action lawsuit in which the plaintiff claimed Sephora improperly shared consumer data with The Retail Equation without consumers’ knowledge or consent. The plaintiff claimed The Retail Equation did so to generate risk scores that allegedly were “used as a pretext to advise Sephora that attempted product returns and exchanges are fraudulent and abusive.”

On August 6, 2020, President Trump signed executive orders imposing new economic sanctions under the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.) and the National Emergencies Act (50 U.S.C. § 1601 et seq.) against TikTok, a video-sharing mobile application, and WeChat, a messaging, social media and mobile payments application. The orders potentially affect tens of millions of U.S. users of these applications and billions of users worldwide.

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On July 23, 2020, U.S. Congresswoman Jan Schakowsky introduced H.R.7756 to require online marketplaces to verify and disclose to consumers certain information regarding high-volume third-party sellers of consumer products. The goal of the bill is to combat the sale of stolen, counterfeit, and dangerous consumer products by requiring transparency of third-party sellers on online retail marketplaces.

Two putative class actions recently filed in the Northern District of California—Ambrose v. Kroger Co. and Nguyen v. Amazon.com, Inc. —preview a new theory of consumer claims relating to per- and polyfluoroalkyl substances (PFAS). Rather than rely on alleged omissions or representations about health risks, the plaintiffs claim that they relied on marketing statements that indicated the products they purchased (“compostable” disposable dinnerware) were disposable and would completely degrade over time and that the presence of PFAS in the products means those marketing statements were false. That focus on the environmental persistence of PFAS, rather than the substances’ alleged health effects, marks a new approach to PFAS consumer class actions.

Importers that have suffered “significant financial hardship” due to COVID-19 may qualify for a 90-day pay extension for certain tariffs. On April 19, 2020, following calls for trade liberalization to ease economic pressures, the Trump administration issued an executive order, along with a temporary final rule by the US Department of Homeland Security’s Customs and Border Protection (CBP), which postpones the time to deposit certain duties, taxes and fees. However, the 90-day pay extension is limited in scope and certain goods are not eligible for the extension.

Trade dress, which includes the total look of a product (size, shape, color) is registrable as a trademark if, like a trademark, it identifies the source of a product. Thanks to a recent decision, In re Forney Industries Inc., Appeal No. 2019-1073, by the US Federal Circuit Court of Appeals (Federal Circuit), it may now be easier for businesses to obtain federal trademark registration for some color-based product packaging trade dress.

As previously reported in the Hunton Employment & Labor Perspectives Blog, on April 7, 2020, the City of Los Angeles joined San Diego County and issued an Order that requires certain workers to wear cloth face coverings. Notably, the Order is more expansive than San Diego County’s face-covering mandate because it covers workers in more occupations, applies to customers and visitors of certain businesses, provides face-covering maintenance requirements, and requires certain employers to furnish face coverings and other sanitary products.

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In a favorable decision for retailers, a California federal court judge scaled back a proposed class action seeking to bring nationwide class claims. Plaintiff Todd Carpenter alleged that he bought a rodent habitat at a California PetSmart and that the habitat was defective in such a way that his rodents were able to chew through and escape. He filed a class action in the US District Court for the Southern District of California for violations of California consumer protection laws, violation of the Magnuson-Moss Warranty Act, and common law fraud. The plaintiff sought to represent a nationwide class consisting of all purchasers of the rodent habitat along with a California subclass. PetSmart moved to strike the nationwide class on the grounds that the court lacked personal jurisdiction over PetSmart with respect to the nationwide class.

In light of the various restrictions on retail businesses being issued nationwide in an effort to slow the spread of COVID-19—such as the “safer at home” orders issued in Los Angeles County and throughout California last week—one Southern California city is taking action to support local businesses, while continuing to push compliance with the new legal restrictions.

Innovation and developments in technology bring both opportunities and challenges for the retail industry, and Hunton Andrews Kurth has a sophisticated understanding of these issues and how they affect retailers. On January 23, 2020, our cross-disciplinary retail team, composed of over 200 lawyers, released our annual Retail Industry Year in Review. The 2019 edition, Spotlight on Technology, provides an overview and analysis of recent developments impacting retailers, as well as what to expect in 2020 and beyond. Topics discussed include: braille gift cards as the next wave of ...

Imagine a future in which Artificial Intelligence (AI) does the recruiting and hiring at US companies. Every new hire will be the uniquely perfect candidate whose skills, personality, presence, temperament and work habits are a flawless match for the job. Performance management and poor performance become extinct, relics from an age in which humans brought primitive instincts, biases and flawed intuition to hiring and employment decisions. While there are risks and challenges to employers in introducing this technology, manufacturers of AI software say that some version of that future may not be too far off. AI software such as Mya, HireVue and Gecko are among the numerous platforms that retail employers are now leveraging to hone in on and hire the best candidates more quickly. Generally speaking, AI interviewing products combine mobile video interviews with game-based assessments. The AI platform then analyzes the candidate’s facial expressions, word choice and gestures in conjunction with game assessment results to determine the candidate’s work style, cognitive ability and interpersonal skills.

The Federal Trade Commission entered proposed final orders settling June 2018 charges filed against several online marketers of e-cigarettes, dietary supplements and skin creams for deceptively advertising “risk free” trial offers.

Historically, foreign investors in U.S. retailers have not considered as a potential impediment to raising capital or M&A activity the clearance of such transactions under the foreign investment regulations administered by the Committee on Foreign Investment in the United States (CFIUS or the Committee). Recent actions by CFIUS, however, suggest that foreign investment in any U.S. company, including retailers, that collects sensitive personal data of U.S. citizens is at potential risk of CFIUS review and remedial action, particularly where the transaction involves Chinese investors.

Introduced by the architect of California’s existing paid sick leave law, AB 555 would expand paid sick leave to require employers to provide 40 hours, or 5 days, of sick leave by the employee’s 200th calendar day of employment. Additionally, employers are only able to cap the amount of paid sick leave a worker earns to 80 hours, or 10 days. Finally, the employer is required to allow an employee to carry over up to 5 days of sick leave into the following year of employment. This proposed amendment would necessarily have a negative impact on California retailers, both large and small. The bill and its amendments can be found here.

Each year, the California Chamber of Commerce (“Chamber”) identifies proposed state legislation that the Chamber believes “will decimate economic and job growth in California.”  The Chamber refers to these bills as “Job Killers.” In March, the Chamber identified the first two Job Killers of 2019: AB 51 and SB 1. Both bills would negatively impact retailers in California. You can view the Chamber’s Job Killer site here.

On January 7, 2019, California Assemblyman Phil Ting introduced Assembly Bill 161 which would prohibit businesses from providing paper receipts except upon request, citing “significant positive environmental and public health effects.” The goal of the Bill is to reduce consumers’ exposure to chemicals contained on paper receipts, such as BPA, and to reduce the carbon footprint.

On January 17, 2019, Hunton Andrews Kurth’s retail industry team, composed of more than 200 lawyers across practices, released their annual Retail Industry Year in Review publication.

The 2018 Retail Industry Year in Review includes many topics of interest to retailers, including the use of artificial intelligence (AI), ITC investigations, product recall insurance, antitrust enforcement in the Trump Administration, the collection and storage of biometric data, consumer privacy, SEC and M&A activity in 2018, the #MeToo movement and the impact of cashierless stores.

GlobeStreet reports that Rancho Cucamonga is in the midst of “retail transformation.” Significant population growth has resulted in both residential and retail development in the city, and further demand is expected—including in the vicinity of the Victoria Gardens Mall.

This past week, several consumer actions made headlines that affect the retail industry.

Brick and mortar retailers are rapidly diversifying checkout and payment methods to combat the erosion of sales to online channels and provide an improved shopping experience for consumers. From self-checkout kiosks, to store-specific mobile applications for payment, scan-as-you-go devices, and even ‘just walk out’ models, retailers are reinventing consumer’s notions of the traditional checkout line by going cashierless. Some estimates predict that these automated technologies could account for 35% of retail sales in the next 20 to 30 years.

This past week, several consumer actions made headlines that affect the retail industry.

“Black Truffle Flavored Extra Virgin Olive Oil” Case Dismissed Against Trader Joe’s

On August 30, 2018, the Southern District of New York dismissed class action claims for consumers who purchased Trader Joe’s “Black Truffle Flavored Extra Virgin Olive Oil.” The complaint alleged that the product label contained the words “black truffle” in large black letters, with the words “flavored” and “extra virgin olive oil” in smaller cursive letters underneath. However, DNA testing revealed that the oil did not contain actual truffle, but rather 2,4-dithiapentane, a petroleum-based synthetic injection that imitates the taste and smell of truffles.

Just weeks after a federal judge called the science behind the alleged carcinogenicity of glyphosate “shaky,” a California state court jury hammered Monsanto with a $289 million verdict, blaming a former groundskeeper’s non-Hodgkin’s lymphoma on his exposure to the Roundup^® chemical. The August 10, 2018, verdict in Johnson v. Monsanto Co., No. CGC16550128 (California Superior Court, County of San Francisco)—which included $250 million in punitive damages—was just the first in the nearly 8,000 Roundup-related cases currently pending against Monsanto, many of ...

What is California’s Proposition 65?

California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (“Prop 65”) is one of the most onerous chemical right-to-know statutes in the nation. It prohibits businesses with 10 or more employees, including businesses that merely ship products into California, from exposing people in California to listed chemicals without providing a “clear and reasonable” warning.

Why Should I Care?

Bringing a Prop 65 action is relatively easy and lucrative for private plaintiffs and their counsel. In 2017, there were nearly 700 cases settled with defendants paying more than $25,000,000 in plaintiffs’ attorneys fees and penalties. This does not include defense counsel fees, business interruption and other costs to comply.

As reported on Hunton’s Privacy and Information Security Law blog, on June 28, 2018, the Governor of California signed AB 375, the California Consumer Privacy Act of 2018 (the “Act”). The Act introduces key privacy requirements for businesses, and was passed quickly by California lawmakers in an effort to remove a ballot initiative of the same name from the November 6, 2018, statewide ballot. We previously reported on the relevant ballot initiative. The Act will take effect January 1, 2020.

This past week, several consumer actions made headlines that affect the retail industry.

District Judge Boots Putative Class Action Against L.L. Bean

A federal district judge has dismissed an attempted class action against L.L. Bean involving the company’s long-standing no-questions-asked warranty policy. In February 2018, L.L. Bean announced that it was changing its policy to limit customers’ return period to one year, while committing to “work with our customers to reach a fair solution” if a problem arises more than a year after purchase. The plaintiff alleged that changing the warranty violated both the Magnusson-Moss Act and Illinois state law as an anticipatory repudiation of the guarantee. But the District Judge ruled that plaintiff neither alleged an injury nor had he stated a claim for which relief could be granted.

As reported on Hunton's Blockchain Legal Resource blog, in the race to develop blockchain technology, companies are increasingly devoting capital to creating proprietary blockchain solutions. A search of the U.S. Patent & Trademark Office (“USPTO”) as of today returns 355 patent applications that contain either “blockchain” or “distributed ledger” in the abstract. Patents are being filed related to a wide variety of industries and applications, including supply chain management, autonomous deliveries, energy networks, electronic health records, 3D printing, travel itinerary management, data security and securing rights to digital media.

This past week, several consumer actions made headlines that affect the retail industry.

Federal Court OKs Large Warning Requirement for Cigar Products

A federal court has upheld forthcoming health warning requirements that will take up 30 percent of the principal panels of cigar product packages and 20 percent of cigar product advertisements. The court found that the textual warnings were “unambiguous and unlikely to be misinterpreted by consumers,” and that the cigar sellers retained sufficient space on their packaging and advertisements “in which to effectively communicate their desired message.” It also concluded that, under the Zauderer standard for commercial speech, the size, format and other design features of the warning statements were reasonably related to the government’s substantial interest in “providing accurate information about, and curing misperceptions regarding, the health consequences of cigar use.” The case is captioned Cigar Assoc. of Am. et al. v. FDA et al. No. 1:16-cv-1460 (D.D.C.).

California is the land of employment legislation, and 2018 is shaping up to be another year of change. We are less than six months into the year, and already several bills that could significantly impact California businesses—for better or for worse—are pending in the California legislature.

As reported on Hunton's Employment & Labor Perspectives blog, the U.S. Supreme Court has voted to hear an appeal of the Ninth Circuit’s decision in Varela v. Lamps Plus, Inc. The Supreme Court is expected to decide whether workers can pursue their claims through class-wide arbitration when the underlying arbitration agreement is silent on the issue. The case could have wide-reaching consequences for employers who use arbitration agreements.