Hunton Retail Law Resource

As we kick off a new year, the Hunton Andrews Kurth Retail team would like to provide you with a rundown of the top posts we shared throughout 2022. Please click the links below to review these highlights.

We look forward to continuing to provide you with real-time, relevant content regarding legal and regulatory developments in the retail space. If you would like to receive email alerts when new posts are published to this blog, please enter your email address in the ‘Subscribe’ field. Thank you for your readership!

In a significant win for employers operating businesses utilizing delivery drivers, on November 29, 2022, the First Circuit Court of Appeals held in Immediato v. Postmates, Inc. that couriers completing local, intrastate deliveries were not exempt from the Federal Arbitration Act (“FAA”), and could be compelled to submit to arbitration, because they were not engaged in foreign or interstate commerce.

The FTC has just announced a release of updated “Health Products Compliance Guidance” to help advertisers ensure that claims about the benefits and safety of health-related products are truthful, not misleading, and supported by science.

As we recently reported, the FTC voted to issue a notice in the Federal Register seeking input on updating its Green Guides. The FTC’s notice seeks input on a number of areas addressed by the current Guides, which last were updated in 2012.

The FTC announced that it will hold an open meeting on December 14 during which the agency will vote to publish a Federal Register notice commencing a regulatory review of the Guides for the Use of Environmental Marketing Claims (“Green Guides”). The commonly followed Guides, which were last updated in 2012, set forth: (1) general principles that apply to all environmental marketing claims; (2) how consumers are likely to interpret particular claims and how marketers can substantiate these claims; and (3) how marketers can qualify their claims to avoid deceiving consumers.

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.

Plaintiff’s firms continue to file variations of state law wiretapping lawsuits over “session replay” software and “live chat” or “chatbot” applications in various jurisdictions. These filings typically allege that companies use such software tools to record users’ interactions with a website without first obtaining users’ consent, thereby violating the wiretapping, eavesdropping, or interception provisions of various state laws. Session replay software allows companies to record and play back users’ interactions on its websites. The “live chat” or “chatbot” feature allows a website user to engage in text conversations with an assistant, to which the company has access. These wiretapping claims threaten substantial penalties. Companies that use these web-tracking tools, however, can take steps to protect themselves from these lawsuits by a careful examination of the software being used and by evaluating what disclosures or consents may be warranted.

The Securities and Exchange Commission (the “SEC”) on October 26, 2022, adopted new executive compensation “clawback” rules, thus fulfilling its 2010 mandate under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). The purpose of this alert is to briefly summarize the rules and some related considerations and highlight next steps that issuers should be considering as they plan to comply with the new rules.

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The Federal Trade Commission published an Advanced Notice of Proposed Rulemaking (ANPR) on October 20 seeking public comment on a potential regulation aimed at curbing deceptive consumer reviews and endorsements. In its announcement, the FTC highlighted the prevalence of false and misleading reviews online and the harms they cause consumers and competitors.

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.