Earlier this year, New York Governor Kathy Hochul signed S.B. S1048A into law (which we reported about here) requiring sellers that impose credit card surcharges to post the total price, inclusive of the surcharge, on the item. The law is aimed at preventing consumers from being misled when making a purchase using their credit card. Governor Hochul recently announced guidance to help businesses better implement the law’s requirements.
Continue Reading New York Issues Credit Card Surcharge Guidance for Businesses

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, Governor Youngkin 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.
Continue Reading The Legislation Enacting Virginia’s New Class Action Statute Should Be Amended to Protect Virginia Businesses From In Terrorem Statutory Damages

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.
Continue Reading Does Being “Left to Guess” Establish Standing for Injunctive Relief After TransUnion?

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 January 26, 2024, the FTC announced that it had entered into an agreement with tractor maker Kubota North America Corporation, settling allegations that Kubota falsely labeled some of its replacement parts as “Made in USA” despite manufacturing those parts entirely overseas. The FTC’s complaint was filed along with a consent order that requires Kubota to pay a $2 million civil penalty, the largest penalty ever assessed for violations of the FTC’s Made in USA Labeling Rule.
Continue Reading FTC Announces $2 Million Penalty Against Tractor Maker for False “Made in USA” Product Claims

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.”
Continue Reading New York Law Targets Hidden Credit Card Fees

The Federal Trade Commission has announced that it will hold an informal hearing on February 13, 2024 on the agency’s proposed rule banning fake reviews and testimonials. As we reported in July 2023, the FTC is proposing to ban business from using illicit review and endorsement practices such as using fake reviews, suppressing honest negative reviews, and paying for positive reviews, which deceive consumers looking for real feedback on a product or service and undercut honest businesses.
Continue Reading FTC Will Hold Informal Hearing on Fake Reviews Rule

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.
Continue Reading Just Browsing? Courts Differ on Whether Website Users Lack Article III Standing for Wiretapping Claims

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.
Continue Reading FTC Warns Influencers and Trade Associations to Be Much More Specific About Ties

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.
Continue Reading California Passes Legislation Banning Junk Fees