The Consumer Product Safety Commission (CPSC) has released COVID-19 guidance confirming that certain personal protective equipment (PPE) must comply with CPSC regulations, including testing, certification, labeling, and recordkeeping requirements.  The guidance, summarized below, also provides a concise overview of other federal regulations that may apply to these products.

Continue Reading CPSC Issues COVID-19 Guidance on Personal Protective Equipment Intended for Consumers

In the age of COVID-19, demand for surface wipes, sprays and similar products is at record levels. Retail stores have struggled to keep supplies stocked and shelves may once again be emptied when the winter flu season arrives. If schools and businesses reopen concurrently, the prospects of securing these products becomes even bleaker, which may re-fuel consumer stockpiling. To meet this surging demand, manufacturers have ramped up production and new entrants are pouring into this market space in unprecedented numbers. Supply chains are already stressed and further straining is expected to continue. Continue Reading Got COVID-19 “Claims”: Recent US EPA Enforcement under FIFRA Emphasizes Compliance Demands on Pesticide Product Supply Chains, especially for Products Claiming to be Effective against Coronavirus

Nestled midway between Dallas and Austin, Waco, Texas, with a population of around 144,000, is home to the Texas Ranger Hall of Fame and Museum, the Dr. Pepper Museum, Baylor University, and Chip and Joanna Gaines’ Magnolia Market; and it now has one of the busiest courts in the nation for patent infringement cases. Waco is part of the Western District of Texas (WDTX), which covers 92,000 square miles, including San Antonio, Austin, Del Rio, El Paso, Midland, and Pecos. For retailers, this vast footprint means they may have a physical presence in the Western District and thus, potentially be a target for a patent infringement case in Waco.

Continue Reading Retailers in Texas Beware – Waco is Open for Business for Patent Cases

On October 19, 2020, the New York State Department of Environmental Conservation (“NYSDEC”) will begin enforcing the state’s ban on single-use carryout plastic bags.  Enforcement was delayed from earlier this year due to a legal challenge, which has since been resolved.  Those persons found to be in violation of the ban face a range of consequences from a simple warning for a first offence and civil penalties thereafter.  Grocery stores, retailers and other establishments in New York that may be the target of enforcement will want to carefully review the provisions of this ban and their obligations going forward.

Continue Reading New York to Commence Enforcement of Plastic Carryout Bag Ban

As the COVID-19 pandemic continues to take its toll on retail businesses throughout the country, the phenomenon of curbside pickup has spread from coast to coast.  With some evidence suggesting that retail customers may continue to prefer curbside pickup over traditional in-store pickup for the foreseeable future, retail businesses and their landlords should consider the potential lease implications of initiating or expanding curbside pickup programs.  These may include dedicated parking allotments, use and maintenance of common areas, new signage, modifications to site plans, insurance requirements, and compliance with title, zoning, and land use restrictions, among others.

Continue Reading Lease Implications of Curbside Pickup

Many retailers are preparing for an increase in shareholder activism in late 2020 and early 2021.  The COVID-19 pandemic largely sidelined activist hedge funds in the spring, but as investors and companies have evolved to the “new normal,” activist hedge funds will start engaging with new targets.  The retail industry has been severely affected by the pandemic and is particularly vulnerable to activists who accumulate shares at historically low prices and then pressure companies to shift strategy.

Continue Reading Bracing for Activist Investors in the Retail Industry

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.

Continue Reading SEC Human Capital Reporting Rules Take Effect

On September 10, 2020, the United States District Court for the District of Massachusetts issued a Memorandum and Order granting summary judgment in favor of a franchisor in response to claims by a purported class of franchisees that they were not truly independent contractors, but employees of the franchisor. This ruling is particularly applicable to retailers using the franchise business model (especially those in Massachusetts), as it aids in the preservation of the franchise business model and the rights of franchisors to operate in compliance with federal law.

Continue Reading Massachusetts District Court Rejects Employee Classification for Franchisees

On October 1, 2020, New York state implemented a ban on businesses charging a “pink tax” for their products or services. The new law prohibits any individual or entity, including retailers, suppliers, manufacturers or distributors, from charging a different price for two “substantially similar” goods or services based on the gender for whom the goods or services are marketed.

Continue Reading New York Implements “Pink Tax” Ban