On Tuesday, February 23, 2021, the Firm hosted Part I of our 11^th Annual National Retail and Consumer Markets Summit – our yearly event that focuses on a selection of the most timely and relevant developments facing the industry. This year, our Summit was held virtually and spanned two days. Part II took place on Thursday, February 25, 2021, and we will be publishing a companion Key Takeaways article in the coming days.

The following is a discussion of the key take-aways from our Part I panels, which featured insightful conversations addressing the ongoing COVID-19 pandemic and the path forward, implications of the new Biden Administration for the retail and consumer markets (“RCM”) industry, and the impact of changes to payment methods and privacy legislation on retailers.  

1. COVID-19, the RCM Sector and the Path Forward

The COVID-19 pandemic has had a significant impact on the RCM sector, and the industry is expected to continue navigating a shifting landscape for the coming months. In light of ongoing delays in vaccine rollouts and persistent lockdowns, Chrystelle Chevalier-Gagnon (McCarthy Tétrault) spoke with Dr. Alain Poirier (Public Health Director, Eastern Townships Region) to learn more about what is in store for our RCM clients.

Third Wave

Although the number of COVID-19 cases continues to decrease, we remain on the cusp of a potential third wave, largely arising out of the proliferation of new variants and mutations. In the event of a third wave, RCM industry members will be well served by continuing to take public health-guided precautions in alignment with previous waves. The hope is that a third wave would be less deadly and result in fewer hospitalizations, as many at-risk individuals will by then have been vaccinated.  

Hope on the Horizon for Retailers

Although there is a risk of a third wave, Canada has secured a more reliable supply of PPE and is better prepared to handle outbreaks. Furthermore, Canadians have learned to implement preventative measures, such as mask-wearing and physical distancing, to slow the spread. Finally, as more people are vaccinated, the frequency of outbreaks and the scope of community spread is expected to decrease.

In light of the above, the end of retail closures is hopefully within reach. In the interim, however, companies in the RCM sector should reopen with caution, adopt a measured approach to increased engagement with the public, and continue to abide by the most recent orders and public health guidance.

2. Post-Inauguration Debrief

The establishment of a new Administration can have a significant impact on the trading relationship that underpins much of Canadian commerce, and can present new opportunities for collaboration between our two countries. McCarthy Tétrault’s Jean Charest, Martha Harrison, and Paul Zed discussed the Biden Administration’s legislative agenda and potential impacts on businesses operating in the RCM sector.

Cultivating Critical Peer-to-Peer Allies

While the relationship between President Biden and Prime Minister Trudeau will set a tone of collaboration between Canada and the United States, ‘raw retail politics’ is likely to be the dominant factor in shaping day-to-day policy. In order to truly strengthen the partnership between the two countries, Canadian politicians and industry members should continue to develop and reinforce relationships with their peer allies – whether politically, or in the form of industry associations. A change at the top is important for tone, but the most important relationships are the ones on the ground.

‘Buy America’ Policies

President Biden has demonstrated that he is approaching international trade with caution and deliberation. His ‘Buy America’ policies are focused on what is good for American workers and are designed to counteract previous trade policies focused primarily on benefitting corporations. However, a potential benefit to Canadian retailers is President Biden’s desire for trade stability, as it will likely involve strengthening trade relationships with the United States’ closest allies and re-engaging some of the bilateral and multilateral relationships spurned by the Trump Administration.

Sectors to Watch

Changes are likely on the horizon for the agricultural and agri-food sectors due to Canada’s diversification of agri-food imports from countries other than the United States. Additionally, the Biden Administration has signaled that it will consider revisiting Country of Origin Labelling policies with a view to WTO-compliance.

The luxury and fast fashion sectors are also undergoing changes. Many companies are rethinking their production strategies due to the trade war between China and the United States, and the proliferation of information about forced labour in the textile industry in China’s Xinjiang region. In addition, new statistics show that the Canada-European Union Comprehensive Economic and Trade Agreement is having a positive impact on trade between Canada and the EU – notably, there has been a significant increase in imported luxury goods from Italy – demonstrating the benefit of regulatory alignment.  

Industry Outlook

Analysts are predicting an explosion of retail spending in the latter half of 2021. Bloomberg projects that Canada will experience 4.7% growth in 2021 and 4.1% in 2022[1] - these are numbers we have not seen in a long time.

Projections are based in large part on recovery programs and economic stimulus injections, and the associated prediction that consumers will increase consumption following the vaccination rollout. The United States economy, in particular, will be burning hot - the government has already injected approximately $10,000 per person into the economy[2] and the Biden Administration plans to inject even more.[3] Inflation should be closely monitored, as pent-up demand is expected to drive consumption levels on both sides of the border.

Opportunities for the RCM Industry

The speakers provided insight into specific areas in which they see particular opportunities for growth amongst players in the RCM sectors:

1. Big Tech, E-Commerce and Platforms: As expected, significant opportunities are emerging for Big Tech, e-commerce and platforms, but companies operating in this sector should exercise caution with regard to the many legislative and regulatory developments on the horizon; governments are looking to strengthen antitrust, privacy, and tax legislation in the near term.
2. Innovation to combat climate change: With disasters such as the California forest fires and the power grid failure in Texas, there will be an appetite to invest in products and technology that can help mitigate the effects of climate change as a cornerstone of Canada and the United States’ post-COVID economic recovery.
3. Regulatory provisions in the United States-Mexico-Canada Agreement: Biden has flagged his focus on Chapter 28, which addresses good regulatory practices. This could yield significant benefits for the RCM sector as the parties move toward greater regulatory alignment, the reduction of non-tariff barriers, and elimination of burdensome and ineffective regulatory requirements.
4. Agri-food: Opportunities abound in this sector, particularly relating to expanded market access in the United States. Strategic, high-end branding for Canadian agricultural products has the ability to yield improved market share and pricing opportunities. It is also appealing for consumers, and there is a lot of room for growth there.

   3. RCM Trends: Payments Canada Developments

The changes and developments to the payment infrastructure that underpins the Canadian e-commerce system are wide-ranging and here to stay. For instance, in 2019, electronic payments accounted for approximately 77% of the total payments in Canada. In 2020, COVID-19 catalyzed digitization, with 44% of surveyed Canadians reporting in November 2020 that they had changed their long-term payment preferences to digital and contactless.[4] McCarthy Tetrault’s Ana Badour discussed these developments with Nancy McNeill, SVP Operations at Coast Capital Savings.

Key Developments

The payment space is an active one right now, with the ultimate goal of the Payments Canada initiative being to modernize the system so it is safe, secure, and data rich, while promoting innovation and strengthening Canada’s competitive position in the world. To that end, Payments Canada is currently focusing on four areas:

1. A third daily exchange period for Canada, allowing the Western provinces to take advantage of automatic payment;
2. The replacement of the Large Value Transfer System with Lynx, which will align with the global ISO 2022 messaging standard;
3. An upgrade to the cheque-clearing system; and
4. The introduction of the Real-Time Rail (“RTR”), a system that works in real-time and allows for instant and irrevocable payments.

Real-Time Rail

The introduction of the RTR will change the way that our fundamental payment infrastructure operates.  

RTR will provide retailers with an alternative to credit card payments, a method for seamless invoicing and billing, and an opportunity for the digitization of large purchases – however, we have only scratched the surface of the ways in which the new payments infrastructure may be leveraged by the RCM industry.

ISO 20022

The introduction of the ISO 20022 messaging standard will lead to data-rich payments, allowing for increased customization. The introduction of this global standard is also anticipated to open Canada up to more efficient cross-border payments and strengthen our competitive position in the world.

4. RCM Trends: Privacy Implications of the Enhanced Online Consumer Experience

Pandemic-related retail closures increased the already significant consumer demand for customized and curated online experiences, and the collection of wide-ranging personal information is a significant aspect of this. Companies operating in this space are looking to gather data with respect to customers’ preferences, habits, and behaviors in order to provide them with bespoke online experiences. Michael Vatis (Chair, Privacy & Cybersecurity Practice and Senior Member of the Appellate Litigation Group, Steptoe & Johnson LLP) and Michael Scherman (McCarthy Tétrault) discussed these issues.

Current Privacy Landscape

Privacy legislation is complex and multi-layered, and is only expected to increase in complexity. In Canada and the United States, federal and provincial/state privacy laws overlap and diverge, making compliance a challenge.

It is important that companies collecting data or planning to collect data to enhance consumer experience consider addressing compliance with privacy legislation prior to rollout. Understanding what information the retailer or brand is collecting, and what information its service providers are collecting, is an essential first step for ensuring compliance with privacy laws and regulations. Trying to tack on compliance measures after the fact will become increasingly difficult, and will arguably fail to achieve full compliance if compliance was required from the outset. In addition, the expansion into new modalities (such as shoppable livestreams) may trigger the application of regulatory regimes that would not typically be expected to extend into the RCM sector.

Legislative Amendments in Canada

Privacy laws in Canada are about to undergo several significant reforms. At the federal level, the Personal Information Protection and Electronic Documents Act (“PIPEDA”)[5] will be replaced by the Consumer Privacy Protection Act (“CPPA”), which is expected to overhaul and modernize Canada’s private-sector privacy laws. In addition, Quebec’s Act Respecting the Protection of Personal Information in the Private Sector[6] is currently under reform.

Companies operating in Canada should try to get ahead of some of these changes, as the penalties under the new legislation are expected to be significant and severe. The main changes we expect include:

1. Requirements with respect to openness and transparency in the use of AI systems;
2. Increased rights for individuals in respect of their data, including data portability and a right of erasure; and
3. A requirement that organizations have a comprehensive privacy management program, including new record-keeping obligations.

For more information about what to expect, please see our previous blog posts on the subject.

As consumer appetite for customized, curated, and enhanced e-commerce experiences continues to grow, potentially lucrative modalities of delivering tailored online shopping services will be attractive to RCM industry members. Early consideration of the compliance obligations that accompany collection of the personal information and data required to enable these experiences is critical.

 

[1] Erik Hertzberg and Kyungyin Yoo, “Canada’s Economy Is Seen Lagging U.S. for Fourth Straight Year”, Bloomberg (February 12, 2021), online <www.bloomberg.com>.

[2] Sarah Hansen, “The U.S. Government Has Authorized More Than $10,000 Per Person In Stimulus Spending This Year”, Forbes (December 30, 2020), online <www.forbes.com>.

[3] Clare Foran, Annie Grayer, Kristin Wilson & Lauren Fox, “House passes Biden's $1.9 trillion Covid relief package” (February 27, 2021), online <www.cnn.com>.

[4] “Canadian spending and purchase habits have not yet returned to pre-pandemic preferences”, online: Payments Canada <www.payments.ca>.

[5] Personal Information Protection and Electronic Documents Act, SC 2000, c 5.

[6] Act respecting the protection of personal information in the private sector, CQLR c P-39.1.