Food & Beverage Consumer Fraud Litigation

Friday, December 2, 2011

California Working Group

9:00 am – 12:30 pm (Registration begins at 8:30 am)

Counsel’s Guide to Responding to Proposition 65 Compliance Challenges and Defending Against Consumer Fraud Claims Brought Under the UCL, CLRA and the FAL

Hon. Richard A. Kramer
Presiding Judge, Complex Civil Litigation Department
Superior Court of California, County of San Francisco (San Francisco, CA)

Scott T. Rickman
Associate General Counsel
Del Monte Foods (San Francisco, CA)

John Hempfling
Global Litigation Counsel
Whole Foods Market (Austin, TX)

Michèle Corash
Partner
Morrison & Foerster LLP (San Francisco, CA)

Proposition 65 and the labeling compliance challenges it presents are but one of many challenges currently faced by food and beverage manufacturers who sell products in the State of California. Described by many in the industry as one of the most troublesome labeling compliance issues in recent years, the list of current chemicals regulated by the OEHHA under Proposition 65 seems to grow longer and longer each day. Still, Proposition 65 is not the only cause for concern for food and beverage manufacturers.

Equally as troublesome in California is the defense of consumer fraud claims brought under the UCL, CLRA and the FAL and litigation brought under Proposition 65’s “Bounty Hunter” provision. Additionally, other recent litigation has involved dietary supplement products, deceptive labeling, natural claims & trans-fats product advertising. This troublesome combination of Proposition 65 labeling compliance issues and private consumer fraud litigation spells headaches for in-house counsel at food and beverage manufacturers who sell products in California.

During this interactive working group be brought up to speed on what the current and emerging chemicals of concern are under Proposition 65, what you can do to ensure proper label compliance as well as litigation tactics for defending against consumer fraud and related litigation in California involving food and beverage products.Topics to be discussed during this session will include:

Proposition 65

• Examining the political landscape and knowing what really drives California regulators
• Current trends in proposition 65 enforcement targeting specific chemicals and updates from OEHHA – 4-MEI, acrlyamide, PhIP, PAHs, benzene, methylmercury
• Considering the impact on industry of California Chamber of Commerce v. Schwarzenegger upholding OEHHA’s authority to list chemicals under Prop 65’s Labor Code mechanism
• Understanding applicable exemptions and when your product may fall within one
• How to respond to an enforcement notice and challenge a listing
• What to do when an identified carcinogen is naturally occurring in your product – is re-formulation an option?
• Identifying science and policy-based approaches to most effectively prevent a targeted substance from being listed
• How to Prop 65-proof your product

Defending Against Private Litigation in California

• Distinguishing available remedies under the UCL, CLRA and the FAL
  • money damages vs. restitution
  • when can private plaintiff’s counsel obtain their attorney’s fees
• Overview of contractual claims often tied to consumer fraud litigation – implied warranty of merchantability, unjust enrichment
• Defending against litigation brought in the public interest under Proposition 65’s “Bounty Hunter” provision
• Weighing the pros and cons of taking your case to the jury
• Responding to claims brought under California Business and Professions Code Section 17200
• Effective defenses – what are they in California?
• Summary judgment – can a motion be won in California?
• Update on the effective use of the catalyst theory by plaintiff’s counsel – and how to respond
• Preemption – overview of recent cases where preemption has been used as a defense
• Trends in private litigation in California – dietary supplements (lead), labeling litigation addressing trans fat content, natural claims

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