In October 2021, Governor Gavin Newsom signed into law a sweeping package of six bills aimed at reducing plastic waste, improving recycling efforts, and clarifying labeling standards for recyclables and compostables.  These new laws will likely mean significant changes for many companies.  They come at a time when multiple states are passing similar environmentally focused bills, signaling a renewed effort to promote recycling and regulate green advertising.

Continue Reading California Passes Sweeping Package of “Green” Bills

The FTC has sent a strong message to industry that it plans to hold companies responsible for using endorsements and customer testimonials that deceive consumers.  The recent warning signals the FTC’s focus on fake reviews and endorsements and the agency’s intent to hold brands and advertising service providers accountable where necessary.  The agency is paying particularly close attention to how brands communicate with customers through third party influencers on social media.

Continue Reading FTC Signals Plan to Enforce Civil Penalties for Deceptive Endorsements

On October 28, the FTC issued a new enforcement policy statement warning companies against deploying “illegal dark patterns” that trick or trap consumers into subscription services, and often making websites difficult to navigate to find cancellation or refund options.  The statement is intended to assist marketers by providing specific guidance on the FTC’s interpretation of existing law as it applies to “negative option marketing” through deceptive sign up tactics, including unauthorized charges or ongoing billing that is impossible to cancel.  The policy statement notes that “[n]egative option offers come in a variety of forms, but all share a central feature: each contains a term or condition under which the seller may interpret a consumer’s silence or failure to take affirmative action to reject a good or service or to cancel the agreement as acceptance or continuing acceptance of the offer.”  Examples include automatic renewals, free trials that convert to pay features, and continuous periodic shipments that continue until the customer cancels the shipment.
Continue Reading FTC to Increase Enforcement Against “Dark Patterns” Directed at Consumers

On September 27, 2021, California Governor Gavin Newsom signed SB 62, also known as the Garment Worker Protection Act, into law.  SB 62 makes California the first state to require an hourly minimum wage for garment workers by banning piece rate pay.  SB 62 expands the definition of a garment manufacturer and extends the scope of liability for wage and hour violations to clothing brands—and likely some retailers.  Under SB 62, “any person contracting for the performance of garment manufacturing” is joint and severally liable with any of their manufacturers and contractors, thus creating upstream responsibility for unpaid wages, attorney’s fees, and civil penalties arising from Labor Code violations.  Although the new law does not become effective until January 1, 2022, companies that contract or subcontract for garment manufacturing, or have employees who perform garment manufacturing functions in California, should begin familiarizing themselves with SB 62 and determining whether/how it affects their business.

Continue Reading California Passes Law Establishing New Wage and Hour Requirements for Employers in the Garment Industry

To close out the 2021 legislative season, Governor Gavin Newsom signed dozens of bills into law, many of which directly affect California employers.  In addition to the coverage in prior blog posts, which are linked below, this article provides an overview of key new employment laws.

Continue Reading 2021 California Legislative Update: California’s New Employment Laws

On Thursday, August 12, 2021, the San Francisco Department of Public Health (SFDPH) published an order strengthening the COVID-19 safety requirements applicable to many business establishments and even spaces in the City and County of San Francisco (the “Order”).  As outlined below, the Order requires significant new vaccine mandates for San Francisco businesses operating (1) Indoor Food and Drink and Fitness Facilities; and (2) Large Outdoor and Indoor Events.  The Order also includes additional requirements for certain health care and congregate living facilities, and more information on these requirements is posted here.

Continue Reading San Francisco Mandates Proof of Full Vaccination for Entry Into Many Establishments

California has issued new guidance for the use of face coverings that will take effect on June 15, 2021.  The guidance impacts retailers and coincides with news that approximately 47% of Californians are now fully vaccinated.  Although the new guidance, published by the California Department of Public Health (“CDPH”), will impact how retailers operate vis-à-vis public patrons, it does not impact employer-employee obligations.  Those obligations are still governed by the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS), and in some cases, the Cal/OSHA Aerosol Transmissible Diseases Standard.  You can find our blog about these standards here.
Continue Reading Face-Covering Considerations for Retailers in a Post-Color Tiered California

All states but one that impose a sales and use tax now have laws requiring out-of-state companies to collect tax if they have a significant economic presence in a state.  The Governor of Missouri, the last remaining state, is expected to sign a similar law this month.  The change stems from a 2018 United States Supreme Court case, the impact of which is far broader than many realize.
Continue Reading The Expanded Reach of States for Sales & Use Tax Purposes – More Than Just e-Commerce Retailers are Impacted

On January 25, 2021, President Joe Biden issued an Executive Order entitled “Ensuring the Future is Made in America by All of America’s Workers,” which directs a broad review and strengthening of governmental procurement and financial assistance policies and regulations which require or provide a preference for goods, products or materials produced in the United States.[1]  While US content must be disclosed on automobiles, textile, wool and fur products sold in the US[2] and there is no law which requires a company to disclose the amount of US content or that a product is manufactured in the US, manufacturers and retailers who make claims about the amount of US content in their products must comply with the  “MADE IN USA” Enforcement Policy Statement issued by the Federal Trade Commission (“FTC”).[3]  The Enforcement Policy Statement applies to all products advertised or sold in the US, except those specifically subject to country-of-origin labeling requirements and “MADE IN USA” claims, express and implied, that appear on products and labelling, advertising and promotional materials and other forms of marketing including digital marketing and social media.[4]  In order to make an unqualified claim that a product is “MADE IN USA”, a manufacturer or marketer should have competent and reliable evidence (“a reasonable basis”) to support a claim that the product is “all or virtually all” made in the US.[5]
Continue Reading Seeking to Stop Deceptive ‘MADE IN USA’ Claims, the FTC Takes Action Against Brandnex

In today’s COVID-era, more retailers are offering innovative solutions for customers to shop with minimal brick-and-mortar browsing time. Options to place an order online and pick up your items in the store are extremely popular and will likely stick around post-pandemic. These options are convenient and allow customers to avoid dealing with delayed shipping.
Continue Reading Best Practices for In-Store and Curbside Pickup