The Learned Concierge - March 2025, Vol. 17
The Learned Concierge
Welcome to your monthly legal insights on the trends impacting the Retail, Hospitality, and Food & Beverage Industries.
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Clark Hill News
Clark Hill Launches New Economic Consulting Division: Clark Hill Economics
Clark Hill Economics (CHE), an “in-house” economic consulting group offering global client solutions such as economic impact reports, project feasibility analysis, macroeconomic forecasting, and international geopolitical analysis. CHE will operate as a division of Clark Hill Public Strategies (CHPS), the lobbying and international government relations arm of Clark Hill Law.
Admiralty & Maritime
Trump Looks to Boost U.S. Shipbuilding, Penalize Chinese Vessels, and Cranes in U.S. Ports
The Trump administration is preparing an executive order designed to reinvigorate US shipbuilding and reduce China’s stronghold over the global maritime industry, according to a report.
The draft order which was reviewed by The Wall Street Journal outlines 18 measures aimed at strengthening the domestic sector, including imposing fees on Chinese-built ships and cranes entering US ports and establishing a new office within the National Security Council to oversee maritime policy.
The executive order, which remains in draft form and is subject to change, would incorporate several longstanding bipartisan proposals aimed at bolstering the maritime industry. Click here to learn more.
Alcohol Law
TTB Adds 28 New Standards of Fill for Wine and Distilled Spirits
Michael Laszlo authored an article, “TTB Adds 28 New Standards of Fill for Wine and Distilled Spirits.”
Long-awaited changes have come to the alcohol industry this year. On Jan. 10, the Alcohol and Tobacco Tax and Trade Bureau (“TTB”) implemented a final rule that expands the “standards of fill” for wine and distilled spirits.
TTB’s new rule changes introduce 28 new container sizes (13 for wine and 15 for distilled spirits) and provide significant flexibility for wine and spirits producers.
The new rule addresses the evolving needs of the alcohol industry and will allow wine and spirits suppliers to provide consumers with a wider variety of purchasing options.
Business and Human Rights
The Department of Homeland Security Makes the Largest Additions Thus Far to the UFLPA Entity List
Mark Ludwikowski, Kevin Williams, and Sally Alghazali authored an article, “The Department of Homeland Security Makes the Largest Additions Thus Far to the UFLPA Entity List.”
Just as the year started, the Department of Homeland Security (“DHS”) announced the addition of 37 companies to the Uyghur Forced Labor Prevention Act (“UFLPA”) Entity List, bringing the total number of entities on the list to 144. This marks the largest single addition to the Entity List since the enactment of the UFLPA.
The Forced Labor Enforcement Task Force (“FLETF”), chaired by DHS, has continuously voiced its commitment to the eradication of forced labor practices in U.S. supply chains and the promotion of accountability for the reported human rights violations against the Uyghurs and other religious and ethnic minority groups in the Xinjiang Uyghur Autonomous Region (“XUR”).
Cybersecurity & Privacy
The Monthly Rundown of All Things Cyber, Privacy, and Technology
Click here to read the Right to Know – February 2025, Volume 26
Chinese Court Issues First Decision on Extraterritorial Scope of Chinese Personal Information Protection Law (PIPL)
In the fall of 2024,China’s Guangzhou Internet Court issued a final judgment against a French hotel group for violations of China’s Personal Information Protection Law (PIPL). In the case, a hotel guest in China sued the French hotel group after staying at the group’s hotel. The guest used the hotel group’s app, agreeing to their terms of service to do so, and booked a room for a stay in China. The hotel group then processed personal information received from the guest outside of China as part of the hotel group’s loyalty program. Despite having read the disclosures provided, which noted that processing could take place outside of China and that data may be shared with third parties, the Chinese court found that there was a violation of PIPL. First, the court found that PIPL applied to the French company because it processed information of individuals in China in order to provide products and services or for other purposes. Under PIPL, the hotel group was required to provide “detailed” information about what was going to be done with the guest’s personal information and to acquire separate consent (separate from that obtained to use the app) for that processing of the information outside of China. Because the hotel group did not obtain separate consent, it violated PIPL and was ordered to apologize among other actions.
JP Morgan Chase Halts Use of Zelle for Payments Originating Through Social Media
Beginning on March 23, 2025, JP Morgan Chase will begin delaying, declining, or blocking payments made using the Zelle payment platform to make payments where those payments originate through social media contact. The change comes in an effort to combat a significant rise in online scams that have utilized the Zelle service for fraud. Chase has explained that the Zelle app was meant to pay friends, family, and other trusted recipients and not for those you meet on social media. In perhaps related news, the U.S. Consumer Financial Protection Bureau sued Chase, Zelle, and several other banks in December for rushing the payment service to market in competition with Venmo and CashApp without implementing adequate consumer safeguards. For retailers who operate or generate sales through social media, they may need to reconsider other payment vehicles as Zelle may no longer be an option. “
White House Seeks Public Input on AI Strategy
The White House is announcing Thursday a fresh call for public input on actions the federal government should take regarding artificial intelligence.
Why it matters: President Trump has revoked former President Biden’s executive order on AI, replacing it with on that calls for focus on U.S. leadership in the sector, including a new “AI Action Plan.” Click here to learn more.
ESG & Sustainability
Want a Side of CO₂ With That? Better Food Labels Help Us Choose More Client-Friendly Foods
When you’re deciding what to eat for lunch or dinner, do you consider the meal’s greenhouse gas emissions? How do you compare the carbon footprint of a beef sandwich with that of a falafel wrap?
Most people can’t tell what’s better for the climate. Even those who care deeply about making sustainable food choices can struggle.
Previous research has shown consumers consistently underestimate the vast difference in greenhouse gas emissions between animal- and plant-based foods. For instance, producing one kilogram of beef emits 60kg of greenhouse gases, whereas producing the same quantity of peas emits just 1kg of greenhouse gases. However, most people think the gap between the two is much smaller.
This matters because collectively, our food choices have a big impact on climate change. Agriculture generates almost a third of global greenhouse gas emissions, with animal products the biggest contributors. Click here to read more.
Food Labeling
Oklahoma House Committee Advances Meat-Labeling bill
An Oklahoma House bill prohibiting the marketing of manufactured-protein food products as traditional meat can now be considered on the chamber’s floor.
House Bill 1126, authored by state Rep. Jim Grego, R-Wilburton, establishes that any food product labeled with an identifying meat term must also include a conspicuous qualifying term for consumer transparency. The bill defines the terms ‘manufactured-protein food product’ and ‘insect-protein food product.’
Violations of the act could result in license suspension or revocation by the State Department of Health. Click here to learn more.
FDA Delays Crackdown on Which Foods Can Be Labeled ‘Healthy’
The rule would prevent many cereal and yogurt products from making nutrition claims and allow nuts, oils, and certain seafood to bear the label for the first time.
The FDA said it would delay implementation of a rule making it harder for many food companies to label their products as “healthy.” The effective date, previously Feb. 25, has been pushed to April 28 as part of a presidential memorandum freezing all Biden administration regulations that have yet to be implemented. The rule prevents foods high in saturated fat, sodium, and added sugars from being called “healthy.” Many cereal and yogurt products would be unable to use the label under the regulation. Click here to learn more.
Food Safety
FSMA, Lead and Nutrition Labels: Food Safety Regulations Can Impact Manufacturers
As the food industry prepares for the January 2026 deadline for compliance with the Food Safety Modernization Act (FSMA) Rule 204 for food traceability, food processors are relying on advanced technologies to automate operations and collect and analyze data.
The traceability requirements are intended to enable faster identification and more rapid removal of potentially contaminated food from the market, thereby reducing foodborne illnesses and related deaths. The rule requires those who manufacture, process, pack or hold foods on the Food Traceability List to maintain records containing Key Data Elements associated with specific Critical Tracking Events and provide that information to the FDA within 24 hours or within some reasonable time to which the FDA has agreed.
Rule 204 is just one regulation impacting food processors. Many others are pending or under consideration. Click here to learn more.
Immigration
Worries Grow Over Future of H-1B, H-2A and H-2B Visa Program Under Trump
Employers in the hospitality industry should prepare for immigration risks, especially where they rely upon seasonal H-2B workers. The current administration has promised to deport undocumented individuals and limit immigration of foreign workers. Restaurants that focus on unique themed cuisine, such as Columbia, Venezuela, or Panama, and rely upon chefs sourced from these countries, will need to proceed cautiously. Hoteliers who rely upon foreign workers to staff their establishments will also need to address concerns. Click here to learn more.
International Trade
BlackRock Strikes Deal to Bring Ports on Both sides of the Panama Canal Under American Control
A Hong Kong-based conglomerate has agreed to sell its controlling stake in a subsidiary that operates ports near the Panama Canal to a consortium including BlackRock Inc., effectively putting the ports under American control after President Donald Trump alleged Chinese interference with the operations of the critical shipping lane.
The deal will give the BlackRock consortium control over 43 ports in 23 countries, including the ports of Balboa and Cristobal, located at either end of the Panama Canal. Other ports are in Mexico, the Netherlands, Egypt, Australia, Pakistan and elsewhere.
The transaction, which must be approved by Panama’s government, does not include any interest in a trust that operates ports in Hong Kong, Shenzhen and South China, or any other ports in China. Click here to learn more.
Tariffs Are Coming, What Now?
Mark Luwikowski, R. Kevin Williams, Aristeo Lopez, Sally Alghazali and Kelsey Christiansen authored an article, “Tariffs Are Coming, What Now?”
On Feb. 1, President Trump used emergency powers under the International Emergency Economic Powers Act (“IEEPA”) to order an additional 25% tariff on imports from Canada and Mexico and an additional 10% tariff on imports from China. However, “energy resources” from Canada will be subject to only an additional 10% tariff, rather than the 25% rate for other products from Canada. U.S. importers will be responsible for paying these emergency tariffs, or IEEPA tariffs, in addition to all other tariffs, duties, and fees owed for any given import.
What Are Reciprocal Tariffs?
Mark Luwikowski, R. Kevin Williams, Aristeo Lopez, Sally Alghazali and Kelsey Christiansen authored an article, “What Are Reciprocal Tariffs?”
In President Trump’s words, a reciprocal tariff means that “if they tax us, we tax them the same amount.” Similarly, Howard Lutnick, Trump’s choice to lead the U.S. Commerce Department, said with respect to reciprocal tariffs that “how you treat us is how you should expect to be treated.”
New Tariffs Imposed on Canada and Mexico, Tariffs Increased on China
Mark Ludwikowski, Kelsey Christensen, and Mario Barrera authored an article, “New Tariffs Imposed on Canada and Mexico, Tariffs Increased on China.”
On March 4, new tariffs under the International Emergency Economic Powers Act (IEEPA) went into effect on imports from Canada and Mexico.
The current Trump administration has shown a preference to impose tariffs quickly, through unilateral executive action. The President’s use of IEEPA authority is founded on emergency declarations with respect to illegal immigration and drugs, such as fentanyl. The IEEPA executive orders explain that the purpose of the IEEPA tariffs is to secure the U.S.’s borders and to hold Canada, China, and Mexico accountable for stopping illegal immigration and the influx of illegal drugs into the United States. As a result, the executive order states that the IEEPA tariffs will continue “until such actions are expressly reduced, modified, or terminated.” This allows President Trump broad discretion to determine when sufficient action has been taken by Canada, China, or Mexico, that warrants termination of these additional tariffs.
Labor & Employment
Labor Groups Sue to keep DOGE From Key Economic Data
A coalition of labor groups filed a suit seeking to stop DOGE from coming to the Labor Department and gaining access to some of the world’s most vital macroeconomic data.
Why it matters: This isn’t the first lawsuit against Elon Musk’s so-called Department of Government Efficiency, but appears to be one of the first filed as a preventative measure – instead of after some major action. Click here to learn more.
Supreme Court Clarifies Burden of Proof in FLSA Exemption Cases, Leaves Key Questions Unanswered
Rafael Nendel-Flores authored an article, “Supreme Court Clarifies Burden of Proof in FLSA Exemption Cases, Leaves Key Questions Unanswered.”
On Jan. 15, the United States Supreme Court issued its decision in E.M.D. Sales, Inc. v. Carrera, which clarified that employers need only prove that an employee is exempt from the Fair Labor Standards Act (“FLSA”) by a preponderance of the evidence. This was a good decision for employers and reversed a Fourth Circuit Court of Appeals decision finding that an exemption must be proven by clear and convincing evidence.
Washington Supreme Court Says Employers May Not Unreasonably Restrain Employees from Working for Competitors
Michael Laszlo authored an article, “Washington Supreme Court Says Employers May Not Unreasonably Restrain Employees From Working for Competitors.”
In a case of first impression, the Washington Supreme Court interpreted Washington law regarding noncompete agreements to broadly protect employees who earn less than twice the state minimum wage from unreasonable restrictions on obtaining supplemental employment and to narrowly permit employers to impose restrictions consistent with the common law duty of loyalty.
Colorado Court of Appeals Says Employers May Not Deduct Product Fees That Are Costs of Business from an Employee’s Wages
Michael Laszlo authored an article, “Colorado Court of Appeals Says Employers May Not Deduct Product Fees That Are Costs of Business from an Employee’s Wages.”
The Colorado Court of Appeals held that deducting product fees from an employee’s wages unlawfully shifts the burden of an employer’s business costs and reduces an employee’s wages.
What the Revised Earned Sick Time Act Means for Michigan Employers
Hannah Reisdorff and Nina Jankowski authored an article, What the Revised Earned Sick Time Act Means for Michigan Employers.”
On Feb. 21, Governor Whitmer signed an amendment to the Earned Sick Time Act (“ESTA”), which became effective immediately. The law requires most Michigan employers to permit employees to accrue and use paid earned sick time.
Employers should take immediate action to understand what ESTA means for their business and employees to ensure compliance.
Litigation
FTC Finalizes Click-To-Cancel Rule
Lindsay Sherwood Fouse-Hopkins and Gabriella Godlewski authored an article, FTC Finalizes Click-To-Cancel Rule.”
The Federal Trade Commission (FTC) recently finalized and issued a new rule governing negative option features, like subscription or membership agreements with automatic renewal and recurring payment options. The rule nicknamed “click-to-cancel,” requires that companies make canceling a subscription as easy as it is to sign up and allow cancellation in the “same medium” offered to sign up. The rule took effect on Jan. 14, however, regulated entities have until May 14 to comply.
Real Estate
Clark Hill 2025 Commercial Real Estate Outlook: Hybrid Work Models and Lease Restructuring
Chad Poznansky and Thomas Ball authored an article, “Clark Hill 2025 Commercial Real Estate Outlook: Hybrid Work Models and Lease Restructuring.”
Although the COVID-19 pandemic has ebbed from the daily lives of workers, its impact on hybrid work continues. While no consensus has emerged, the hybrid work model, which requires splitting the work week between going into the office and working from home, has grown in popularity. The ongoing impact of remote and hybrid work arrangements has undoubtedly influenced not only office space demand, but also several legal considerations in commercial leases. These legal considerations for commercial real estate include the balance between a tenant’s need for flexibility with a landlord’s obligations to its lender as well as changes in the costs of an office building and how they are best allocated.
As we adapt to the new realities of office and hybrid work, the field of negotiating leases has changed between landlords and tenants. As such, the parties should make sure that they account for the desire for flexibility as well as the fair allocation of costs, while landlords maintain their investments and satisfy lenders.
Recent Changes to Illinois Real Estate Law Affecting Landlords, Tenants in 2025
Chad Poznansky and Thomas Ball authored an article, “Recent Changes to Illinois Real Estate Law Affecting Landlords, Tenants in 2025.”
2025 brought over 300 changes to the laws of the State of Illinois. Some of these new laws impact the relationship between landlords and tenants and also impose further restrictions on condominium associations. At the start of each new year, landlords must stay up to date on the most recent laws. If any questions arise, landlords and tenants should seek legal counsel to determine how the changes affect their circumstances. The most prominent piece of legislation in real estate is the updated “Landlord Retaliation Act,” but landlords and tenants should be aware of the other statutes being added to the books.
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