The Trading Bulletin: March 2024

Welcome to our Trading Law Bulletin, where we share the latest developments on data protection, financial services, health and safety, environmental issues, and marketing.

Data protection updates

Are your advertising cookies compliant?

The ICO is developing an AI solution to help proactively identify websites that are not using advertising cookies in a way that complies with data protection legislation. Early this year, the ICO will be running a ‘hackathon’ event to see what this solution might look like in reality. The ICO's warning focuses on the use of personal information for personalised advertising without consent, but companies should be mindful of their use of cookies more generally, as the ICO's AI tool is likely to look at cookie compliance more generally.

Further information can be found on the ICO's website.  

ICO issues £140,000 fine for spam texts and emails

Food delivery company, HelloFresh, was fined £140,000 by the ICO for sending out 79 million spam emails and 1 million spam text messages over a seven-month period. It was found that the messages "lacked proper consent" as customers were not aware they had opted in to receive the marketing messages. The ICO found that the company contravened regulation 22 of the Privacy and Electronic Communications Regulations 2003.

Read more about the fine on the ICO's website.

European Union AI Act

On 8 December 2023, the EU institutions reached political agreement on laws to regulate the use of AI in the EU. The agreed text of the AI Act is yet to be finalised and published; however, this is expected to take place early this year. EU companies, that are developing or using AI tools, will need to comply with the obligations and requirements set out in the AI Act, such as ensuring data quality, transparency, and security of their AI systems.

The European Commission has provided further information here.

Financial Services updates

Limited Permission Firms - New regulatory framework for Diversity and Inclusion

A new regulatory framework for diversity and inclusion in the financial sector will be finalised in 2024. Firms with limited permissions such as limited permission credit brokers will be expected to comply with new rules and guidance on non-financial misconduct (serious adverse behaviour such as bullying or harassment), assessments of fitness and propriety, and amendments to threshold conditions for authorisation: consideration of any evidence of a firm or person's engagement in discriminatory practices will be included when the FCA considers whether a firm is suitable for authorisation.

Health and Safety/Environmental updates

Should there be an amendment to the Criminal Justice Bill to create an offence of assaulting a retail worker?

Retail crime is soaring and as such Alex Norris MP has proposed an amendment to the Criminal Justice Bill, which would create a standalone offence of “Assaulting a retail worker”.

Read about our Retailers Against Harassment Certification, created in partnership with The Retail Trust, the Certification aims to give retailers and their employees greater knowledge and understanding of how to tackle harassment and create safer working environments.

The latest on Martyn's Law – the 'Protect Duty'

Martyn's law will impose a specific duty on the operators of premises and events that attract significant numbers of people, to identify and mitigate the threat posed by terrorist activity. Read our article for the latest on Martyn's law and what steps retailers should be starting to consider.

Asbestos: Your Duty

HSE has launched a new campaign emphasising legal duties to manage asbestos. The duty covers all non-domestic premises e.g. shops. The guidance aims to improve understanding of what the legal duty to manage asbestos involves to ensure exposure to the dangerous substance is prevented.

Read the guidance on the HSE's website.  

HSE focus on addressing work related stress

Following the focus on mental health in the HSE's Protecting People and Places strategy for 2022 to 2032, HSE has launched a new online learning tool designed to help employers ensure they are compliant with the laws surrounding supporting good mental health in the workplace.

Marketing updates

Environmental claims in advertising

Retailers are just one of many industries subject to increased ASA rulings relating to green claims. It is important for A&M departments to familiarise themselves with rules around environmental claims and ensure that their ads are compliant.

We look at environmental claims and staying compliant in our recent article.

Artificial Intelligence to assist the ASA with ad crackdowns

At the ASA's talk entitled "Greenspeaking with Confidence", the regulator announced the release of its new five-year strategy, AI-assisted collective ad regulation, which it stated has "ambitious targets to make sure all ads are responsible and people are protected from being misled, harmed or offended by them."

Retailers need to ensure their advertising and marketing departments have a strong understanding of how to maintain compliant with the ASA advertising code to match the strengthening ability of the ASA to address breaches arising from the new AI focused strategy.

CMA and the baby formula market

After an investigation into the baby formula market, the Competition and Markets Authority found that "manufacturers raised prices by 25% in two years and managed to increase profit margins during the cost-of-living crisis" with producers such as Danone and Nestlé accounting for 85% of sales of baby formula. The investigation put pressure on producers and retailers to reconsider their pricing, with several supermarkets cutting prices on the Aptamil brand earlier in the year.

This is a welcome price drop for those whose purse strings are already tight, as a result of ongoing inflation, and an important one to be aware of for those involved in sales of baby formula.

ASA and Instagram collaboration – time to learn the rules

Social media has come across as a bit of a Wild West over the past months – as discussed in our Marketing Matters newsletter. For example, the non-recognition of marketing communications and advertising of vapes has fallen foul of the ASA on a few occasions. This partnership is aimed to also extend to influencers who may inadvertently breach the rules.

Unilever under CMA investigation

The CMA stated in December that Unilever may be overstating the 'greenness' of some of their products. This comes amid an investigation by the watchdog into Dove soap and Hellmann's mayonnaise. The CMA is looking into whether the green claims being made by the FMCG giant could be misleading to consumers, something Unilever considers 'disappointing', stating that it refutes any such allegations.

If you would like to discuss any of these points further, please contact one of the team below.