The Learned Concierge - October 2024, Vol. 13

The Learned Concierge

Welcome to your monthly legal insights on the trends impacting the Retail, Hospitality, and Food & Beverage Industries.

View previous issues and sign up to receive future newsletters by email here.

Cybersecurity & Privacy

The Monthly Rundown of All Things Cyber, Privacy, and Technology

Click here to read the Right to Know – September 2024, Volume 21

Vulnerabilities in Key Software Cost Businesses $87B Annually

Application Programming Interfaces (or APIs) are key software tools used to integrate web and mobile applications. But, an investigation of over 160,000 incidents found that these key pieces of software are responsible for 11.8% of all global cyber events. Not only is this software ubiquitous in modern businesses (allowing for seamless communications and data exchange across applications and services) but they allow for direct pathways to businesses’ underlying infrastructure and sensitive data. The investigation found that vulnerabilities in API software cost businesses worldwide $87B annually. This information again reiterates the needs for businesses to better understand the software they use on their website and mobile applications, the vendors they work with on this software, and properly evaluate and assign the risks involved in working with software vendors.

Environmental

PFAS “Lookback” Reporting: Delayed in the US, Moving Ahead in Canada

Maram Salaheldin and Joseph Brendel authored an article, “PFAS “Lookback” Reporting: Delayed in the US, Moving Ahead in Canada.”

As regulatory activity and litigation concerning per- and polyfluoroalkyl substances (“PFAS”) continue to pick up across the U.S. and around the world, recent developments in North America highlight one of the challenges faced by companies with international operations and supply chains—preparing for and complying with diverging requirements in different jurisdictions.

California Passes Three Landmark Environmental Bills

California passed significant environmental legislation, including a groundbreaking food date labeling bill, a textiles recovery bill, and a full ban on plastic bags at retail checkouts. These bills, now awaiting the governor’s approval, represent a major step forward in reducing waste and greenhouse gas emissions, while also offering practical solutions for consumers. To learn more about these new bills, click here.

Food & Beverage

Pennsylvania Grocery Stores, Gas Stations Can Now Sell High Noon, Other “Ready-To-Drink” Cocktails in Stores 

Late last month, businesses like restaurants, hotels, grocery stores, and convenience stores were able to begin applying for permits to sell canned cocktails. Click here to learn more.

The FDA Wants to Place Warning Labels on Food Packages to Combat Obesity and Other Health Conditions

The Food and Drug Administration (FDA) is looking to propose the inclusion of front-of-package warning labels that detail the calorie, fat, sugar and salt content of various processed food and drink products. The agency plans to make a formal proposal in October, a little over two years after the FDA first considered implementing a new nutrition labeling system. Click here to learn more.

Food Fraud Threat to Industry is High – But Technology Can Help

The threat of food fraud to brands and the industry is greater today than it’s ever been before.  Food fraud – the intentional adulteration, misrepresentation or mislabeling of food products for economic gain – has been around almost as long as the food industry itself. But, more recently, food fraud has become exacerbated by rising food prices, driven by factors such as the war in Ukraine, climate change and disruptions in global supply chains.  There’s no magic formula or silver bullet to prevent food fraud but new thinking and advances in technology make doing so easier than in the past. In 2024, the food industry can leverage technology, regulations, and best practice to combat food fraud. Click here to learn more.

Is The Food in the Fridge Still Good? California Wants to End the Guessing Game

California will soon help end the everyday household debate over whether the food in the fridge is still good to eat. The state is the first to ban food labels such as “sell by” or “best before” under a law signed by Gov. Gavin Newsom. There are more than 50 different date labels, but the information largely does not relate to food safety. The new law will require the use of “Best if Used By” label to signal peak quality and “Use By” label for product safety. It will take effect July 2026. Misleading food label is the driving cause for more than 6 million tons of food waste in California. Click here to learn more.

Labor & Employment

DraftKings Case Shows Limited Reach of California’s Noncompete Ban

Monique Eginli and Katie Sharpless authored an article, “DraftKings Case Shows Limited Reach of California’s Noncompete Ban.”

It is no secret that California is hostile to noncompetition (noncompete) agreements. As of Jan. 1, 2024, California employers cannot enforce nor enter into noncompete provisions or agreements with an employee or prospective employee, even if the employee signed the agreement outside of California or worked outside of California. The limitations, if any, of California’s ability to control or regulate a contract negotiated in, performed in, and governed by the law of another state was not tested, until now.

The FTC Rule Banning Noncompetes Has Been Struck Down – For Now

David Ovard and Lisa Carney Eldridge authored an article, “The FTC Rule Banning Noncompetes Has Been Struck Down – For Now.”

On Aug. 20, a new federal court decision from the Northern District of Texas in Ryan LLC v. Federal Trade Commission halted enactment of the Federal Trade Commission’s (“FTC”) Rule banning noncompete agreements throughout the country.

The FTC previously issued a controversial Final Noncompete Clause Rule in which the FTC essentially banned all employment noncompetes with two narrow exemptions: (i) existing noncompetes with “senior executives” (executives who have the final say on policy decisions that significantly impact the business and who earned at least $151,164 in total annual compensation from their employer in the preceding year) and (ii) noncompetes in the context of the sale of a business. The Rule was to take effect Sept. 4.

Colorado Supreme Court Rules “Holiday Incentive” Pay Must Be Calculated in Overtime Pay

Michael Laszlo authored an article, “Colorado Supreme Court Rules “Holiday Incentive” Pay Must Be Calculated in Overtime Pay.”

Colorado employers must immediately look at their policies with respect to calculating overtime and ensure that they are properly calculating the “regular rate of pay” to include all payments the employee received regularly during the workweek, including shift differentials. Of course, large employers will see the biggest impact, but small employers must also be aware of this ruling and adjust accordingly. Employers should prepare to have employees request re-calculation of their overtime wages paid in the past and prepare to immediately implement overtime calculation in line with this case.

Mergers & Acquisitions

Navigating the Dynamic M&A Landscape in the Sports Apparel Industry

Jonathan Roffe, Sam Yousif, and Michael Sauer authored an article, “Navigating the Dynamic M&A Landscape in the Sports Apparel Industry.

The mergers and acquisitions (M&A) landscape in the sports industry has remained notably active and attractive to investors, driven by continuous digital transformation and global franchise investments. The M&A market’s fluctuating dynamics underscore the importance of understanding the legal intricacies of each deal to secure the best outcomes. Staying informed about these trends and developments is crucial for financial services professionals and potential clients. By maintaining a keen awareness of market shifts and strategic transactions, stakeholders can better navigate the complexities of the M&A landscape, ensuring informed decisions that align with broader investment and business goals.

This publication is intended for general informational purposes only and does not constitute legal advice or a solicitation to provide legal services. The information in this publication is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel. The views and opinions expressed herein represent those of the individual author only and are not necessarily the views of Clark Hill PLC. Although we attempt to ensure that postings on our website are complete, accurate, and up to date, we assume no responsibility for their completeness, accuracy, or timeliness.