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The Retail Industry team would like to provide you with an update on legal developments in the retail and consumer products industries as posted on the Hunton Retail Law Resource blog. If you wish to receive email alerts when new posts are published, please visit our blog and enter your email address in the subscribe field.

Here is a selection of our most read posts we thought might be of interest to you:

• SEC Human Capital Reporting Rules Take Effect
  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.
  
  
• CPSC Issues COVID-19 Guidance on Personal Protective Equipment Intended for Consumers
  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.
  
  
• Lease Implications of Curbside Pickup
  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.
  
  
• New York Implements “Pink Tax” Ban
  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.
  
  
• Bracing for Activist Investors in the Retail Industry
  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.
  
  
• New York to Commence Enforcement of Plastic Carryout Bag Ban
  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.
  
  
• Retailers in Texas Beware – Waco is Open for Business for Patent Cases
  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.
  
  
• 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  
  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.
  
  

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