Day 1 - Monday, July 28, 2014

9:00
Working Group A: Interactive Case Study – How to Use Science and Results of Clinical Studies in Compliance With FTC Regulations
1:30
Working Group B: How to Avoid the Pitfalls of GMO Labeling and Litigation

Day 2 - Tuesday, July 29, 2014

8:00
Registration Begins and Continental Breakfast
9:00
Conference Co-Chairs’ Opening Remarks
9:15
FDA Nutritional Labeling Revamp – The Good, the Bad, and the Ugly, and How Food Companies Should Update Their Marketing Efforts
10:00
What will FDA’s Proposed Ban on Trans-Fat and Partially Hydrogenated Oils do to your Business – Implications of a non-Generally Recognized as Safe Determination?
10:45
Coffee / Tea Break
11:00
Keynote Address – FDA Speaks on Nutritional Labeling and PHO Determination
11:45
Strategy Panel – How to Structure Your Marketing Campaigns using “Natural,” “Gluten-Free,” “Organic” “Non-GMO”: Preventing the Mistakes that Can Lead to Costly Litigation
12:45
Networking Luncheon
2:00
Preventing Costly Missteps When Marketing to Children – Valuable Guidance from the Children’s Food & Beverage Advertising Initiative
3:00
Afternoon Break
3:15
USDA Proposal on Food Marketing in Schools – How to Adapt Your Marketing Messages
3:45
How to Mitigate Liability When Using Social Media for Food Advertising, Sweepstakes, Promotions
4:45
Interactive Town Hall: Who’s Responsible for Children’s Health? Are Food & Beverage Companies Held to a Higher Standard than Other Industries that Market to Children?
5:30
Conference Adjourns to Day Two

Day 3 - Wednesday, July 30, 2014

9:00
Co-Chair’s Opening Remarks
9:05
Keynote Address – FTC Speaks on How to Meet Claim Substantiation Standards
9:30
FTC v. POM – Dissecting the Legal Issues of this Landmark Case
10:15
Coordinating Legal and Marketing Efforts: How to Work Together to a Develop a Risk-Based Marketing Message
11:15
Coffee / Tea Break
11:30
Update on California’s “Food Court” – A Practical Review of the High Profile Consumer Fraud Class Actions Cases in the Northern District of California: Areas of Focus by Plaintiffs’ Bar
12:15
Live Debat e: State vs. Federal Rights as to Food Claims – The State of Preemption in Food Marketing and Advertising Compliance
1:00
Networking Luncheon
2:15
How to Meet Government Requirements for Health Claims Substantiation
3:15
Does our Legal System Promote and Protect Public Health? Views from the Science, Industry, and Consumer Perspectives
4:00
Interactive Wrap Up Session: Should the Government Permit Companies with Substantiated Beneficial Health Benefits to be More Express in Their Health Claims?
5:00
Conference Ends

Day 1 - Monday, July 28, 2014

9:00
Working Group A: Interactive Case Study – How to Use Science and Results of Clinical Studies in Compliance With FTC Regulations

Jonathan W. Emord
Principal
Emord & Associates, P.C. (Clifton, VA)

In the midst of increasing enforcement on claim substantiation for health-related claims, companies must comply with FTC regulations

governing how clinical studies are administered, but also how the results of the studies are being used. In this unique case study, session leaders will dive into real life examples and best practices on when and how to use these studies, and how to mitigate potential exposure to litigation down the road.
  • Justifying the gap between science and the law: What are you allowed to say?
  • What does a proper clinical study look like?
  • Review of relevant case law
  • Determining whether to sell products with specific claims: Cost v. benefits

1:30
Working Group B: How to Avoid the Pitfalls of GMO Labeling and Litigation

Sarah Brew
Partner
Faegre Baker Daniels LLP

Shirley Boyd
Vice President and Associate General Counsel
Cargill, Incorporated (Minneapolis, MN)

Jo E. Osborn
Vice President & Assistant General Counsel
TreeHouse Foods Inc. (Oak Brook, IL)

Is making Non-GMO claims on your products as risky as making natural claims? If you don’t know the answer to this question or you answered “no,” you need to attend this session! “Non-GMO” is not a legally-defined claim. Learn everything you need to know to manage regulatory compliance and consumer class action risks and built your brand reputation in this market segment. Speakers will also dig into the implications of the current “Non-GMO Project” standards.

  • What states have passed GMO-labeling laws, which have pending legislation, which state initiatives have failed, and the current state of federal legislative efforts
    • 522 in Washington State
    • Prop 37 in California
    • Bill HB112 in Vermont
    • Bill LD718 in Maine
    • Federal Bill: Genetically Engineered Food Right-to-Know Act
  • Existing non-US non-GM standards
  • Current existing and proposed US industry standards
  • Supply chain challenges and costs of sourcing non-GMO ingredients
  • Challenges of documenting any Non-GMO supply chain

Day 2 - Tuesday, July 29, 2014

8:00
Registration Begins and Continental Breakfast
9:00
Conference Co-Chairs’ Opening Remarks

Jo E. Osborn
Vice President & Assistant General Counsel
TreeHouse Foods Inc. (Oak Brook, IL)

Laura J. Protzmann
Senior Counsel — Marketing
Unilever US (Englewood Cliffs, NJ)

9:15
FDA Nutritional Labeling Revamp – The Good, the Bad, and the Ugly, and How Food Companies Should Update Their Marketing Efforts

Bruce Silverglade
Principal
Olsson Frank Weeda Terman Bode Matz PC (Washington, DC)

  • Understanding industry reaction to FDA’s proposed new nutrition labeling requirements
  • Dissecting the increased emphasis on total calories, added sugars, Vitamin D, and potassium
  • What implications will the revamp have on your company’s marketing strategy?
  • How will new FDA rules encourage reformulation of existing brands?
  • Anticipating the costs of complying with the new regulations

10:00
What will FDA’s Proposed Ban on Trans-Fat and Partially Hydrogenated Oils do to your Business – Implications of a non-Generally Recognized as Safe Determination?

Mark Mansour
Partner
Jones Day

Laura J. Protzmann
Senior Counsel — Marketing
Unilever US (Englewood Cliffs, NJ)

  • Understanding FDA’s “tentative determination” that trans fats should not keep the Generally Recognized as Safe (GRAS) classification
  • Debating whether PHOs are dangerous to the public at current consumption levels?
  • Highlighting marketing and advertising implications specific to the baking industry
  • In what way could this determination open food and beverage companies to litigation for past use of this “unsafe” product?

10:45
Coffee / Tea Break
11:00
Keynote Address – FDA Speaks on Nutritional Labeling and PHO Determination

Paula Trumbo
Director, Nutrition Programs
U.S. Food and Drug Administration (Washington, DC)

Andrew Zajac
Director, Division of Petition Review
U.S. Food and Drug Administration (Washington, DC)

11:45
Strategy Panel – How to Structure Your Marketing Campaigns using “Natural,” “Gluten-Free,” “Organic” “Non-GMO”: Preventing the Mistakes that Can Lead to Costly Litigation

Lorrin Tuxbury
Senior Counsel, Food & Regulatory
Keurig Green Mountain, Inc. (Burlington, VT)

“Natural,” “Organic,” “Sustainable,” “Fresh,” “Gluten-Free,” and “Grass-Fed” are claims that are causing companies to come under attack in various regulatory and judicial forums. Come prepared to ask questions on how to optimize your marketing efforts without exposing your company to litigation.

  • “All Natural” Definition – Guidance on how to structure your claims
  • Understanding the development of industry consensus standards and the role of self-regulation
  • Learnings from relevant case law
    • Trader Joe’s, Kashi, Frito-Lay, Ben & Jerry’s
  • Understanding the latest from the Washington regulatory landscape
  • Recent FDA warning letters
  • Complying with the Organic Food Production Act

12:45
Networking Luncheon
2:00
Preventing Costly Missteps When Marketing to Children – Valuable Guidance from the Children’s Food & Beverage Advertising Initiative

Elaine D. Kolish
Vice President & Director
Children’s Food & Beverage Advertising Initiative (Arlington, VA)

Brent Robbins
Assistant General Counsel
General Mills (Minneapolis, MN)

  • Update on the Children’s Food and Beverage Advertising Initiative
  • Understanding CFBAI’s school marketing guidelines
  • Discussing the impact of the White House and First
  • Lady Michelle Obama’s endorsement of the CFBAI in conjunction with the fight against childhood obesity
  • Should the CFBAI’s rules be expanded to cover a wider range of ages (12+) and marketing platforms?

3:00
Afternoon Break
3:15
USDA Proposal on Food Marketing in Schools – How to Adapt Your Marketing Messages

Gregory Frantz
Marketing Counsel
Campbell Soup Company (Philadelphia, PA)

  • Dissecting the USDA’s proposed new rules limiting marketing for unhealthy foods in schools
    • advertising and marketing for foods that meet the nutrition guidelines
    • sold in schools through vending, a la carte, school stores, etc.
  • How will these new rules impact of companies that market heavily in schools?
  • Can companies “already doing the right thing” use PR to benefit from these new rules, or should they pass

3:45
How to Mitigate Liability When Using Social Media for Food Advertising, Sweepstakes, Promotions

Adam Ekonomon
Senior Director and Assistant General Counsel, Marketing and Regulatory
The J.M. Smucker Company (Orrville, OH)

Allison Fitzpatrick
Partner
Davis & Gilbert LLP (New York, NY)

  • Drafting a comprehensive and actionable social media policy for bloggers, employees and affiliates
  • How to ensure claims on the internet are accurately portraying your product information
  • Complying with disclosure requirements in order to not mislead or deceive
  • FTC’s revised guides on testimonials and endorsements: Educating your employees on what they can and cannot post
  • How to make a disclosure of endorsement on Facebook, Twitter and other popular social media forums
  • Complying with CAN-SPAM requirements

4:45
Interactive Town Hall: Who’s Responsible for Children’s Health? Are Food & Beverage Companies Held to a Higher Standard than Other Industries that Market to Children?

In recent years, food and beverage companies have been the target of much of the blame for the increase in the childhood obesity in America. But what about the other products that may lead to sedentary lifestyles in children – video games, TV, laptops? Do companies that produce and market these products have a responsibility for children’s health? In this interactive “town hall” led by Boot Camp Co-Chairs, you will have the opportunity to hear what your peers in the audience think voice your own thoughts on this critical topic of children’s health.

5:30
Conference Adjourns to Day Two

Day 3 - Wednesday, July 30, 2014

9:00
Co-Chair’s Opening Remarks
9:05
Keynote Address – FTC Speaks on How to Meet Claim Substantiation Standards

Steve Baker
Director, Midwest Region
Federal Trade Commission (Chicago, IL)

9:30
FTC v. POM – Dissecting the Legal Issues of this Landmark Case

Ronald Levine
Partner, Co-Chair, Litigation Department Chair, Best Practices Committee
Herrick, Feinstein LLP

Carlos Lazatin
Partner
O’Melveny & Myers LLP (Los Angeles, CA)

By popular request, this important session will provide attendees with an update on the landmark FTC v. POM case with a thorough discussion of the legal issues presented by this litigation as well as what learnings from this case food and beverage companies can use in their daily compliance programs. This session was designed to engage participants in a dissection of the constitutional and other legal challenges presented by this history-making case. Arguments presented against the FTC include:

  • Constitutionally protected speech – First Amendment does not permit the government to presume that protected speech is misleading” and shift to the “speaker” the burden to prove that the speaker’s speech is not misleading
  • FTC’s requirement of two RCTs for all health claims would be inappropriately broad, where far less intrusive remedies are available (e.g. disclaimers)
  • FTC’s order violates the Administrative Procedure Act (“APA”) because the FTC has introduced a new standard without proper procedures – requiring that two RCTs for a disease claim

10:15
Coordinating Legal and Marketing Efforts: How to Work Together to a Develop a Risk-Based Marketing Message

Stefanie Fogel
Partner
DLA Piper (Boston, MA)

Todd Harrison
Partner
Venable LLP (Washington, DC)

Edward Shin
Senior Corporate Counsel
Welch Foods (Concord, MA)

  • How to develop an early cross-communication strategy between R&D, marketing, legal, and compliance
  • Standardizing a process of claim substantiation to develop a step-by-step protocol for developing your marketing messages
  • Establishing a committee that brings together a crossfunctional team of relevant functions
  • Understanding FTC’s expectations of your company’s product claims
  • Using “qualifying language” to meet claim substantiation requirements

11:15
Coffee / Tea Break
11:30
Update on California’s “Food Court” – A Practical Review of the High Profile Consumer Fraud Class Actions Cases in the Northern District of California: Areas of Focus by Plaintiffs’ Bar

J. Noah Hagey
Partner
BraunHagey & Borden LLP (San Francisco, CA)

Trenton H. Norris
Partner & Head, Consumer Protection Practice
Arnold & Porter LLP (San Francisco, CA)

In the Northern District of California, there were over 85 false advertising class action complaints filed between April 2012 and April 2013, of which 80% involved claims against food or beverage companies. Expert California attorneys will take you through some of the most important cases, and highlight the practical learnings you should take back to the office.

  • Relevant California Statutes –
    • Unfair Competition Law (“UCL §17200)
    • Consumers Legal Remedies Act, Ca. Civ. Code § 1750
  • Ivie v. Kraft Foods Global, Inc. – misleading claims
    • “no artificial sweeteners or flavors,” “reduced fat,”
    • “contains evaporated cane juice,” “100% natural”
  • Gustavson v. Wrigley Sales Co. – “sugar free” claims
  • Bruton v. Gerber Products Co. – sugar and class certification issues
  • Gitson v. Clover Stornetta Farms – “natural” on yogurt labels
  • Wilson v. Frito-Lay NA. – “natural source of antioxidants” claims
  • Banafsheha v. H. J. Heinz Company (C.D.Cal.) – GMO corn In ‘all natural’ vinegar

12:15
Live Debat e: State vs. Federal Rights as to Food Claims – The State of Preemption in Food Marketing and Advertising Compliance

Moderator

Nerissa Coyle McGinn
Partner
Loeb & Loeb LLP (Chicago, IL)

Recently the “Food Court” (N.D.Cal.) rejected a food company’s primary jurisdiction argument based on preemption in a class action involving claims that the company deceptively labeled its product as natural. The court stated that the FDA has declined several requests to promulgate regulations or issue a policy statement regarding the use of the word “natural” on food product labeling. Therefore, the federal law did not preempt the plaintiff from bringing the suit under California state law. Come witness this live debate as to whether the federal government should issues hard rules as to these types of marketing claims, or whether the states should decide to what sort of food claims their citizens should be subjected. An age old debate – State vs. Federal Rights.

Debate

  • Pro State’s Rights – States should protect the health and safety of their citizens, including food, beverages, and dietary supplements
  • Pro Federal Rights – Since there are federal agencies (enabled by federal law) that regulate food (FDA, USDA), their laws preempt the states from making and enforcing laws in this arena

1:00
Networking Luncheon
2:15
How to Meet Government Requirements for Health Claims Substantiation

At the heart of any food or dietary supplement advertising campaign based on beneficial health benefits is claim substantiation. Why is it important and what claims need to be substantiated? What role do scientists, doctors and other professionals play in substantiation? These questions and more will be answered at this comprehensive session. Real-world examples and hypotheticals will be used to illustrate the legal and compliance pitfalls that challenge companies on a daily basis.

  • How to work with your teams to ensure proper clinical studies are accomplished
  • What is an establishment claim and why is it important?
  • Understanding the requirements of randomized, double blind, placebo-controlled human clinical trials
  • Understanding the “reasonable basis” standard that the FTC uses for express and implied claims
  • Contrasting FDA v. FTC review of health claims

3:15
Does our Legal System Promote and Protect Public Health? Views from the Science, Industry, and Consumer Perspectives

Jeffrey Blumberg
Director, Antioxidants Research Laboratory Professor, Friedman School of Nutrition Science and Policy
Tufts University (Boston, MA)

Anthony Anscombe
Partner
Sedgewick LLP (Chicago, IL)

As Summit attendees have heard, the food industry is under a litigation microscope these days, with many class action lawsuits over advertising and labeling claims. A great deal of this litigation is driven by industry’s desire to meet consumer demand for healthy nutrition, functional foods, and specific health benefits. Companies describe their products as “natural” or tout that they contain antioxidants or probiotics. Then litigation ensues on the premise that the manufacturer has said something that wasn’t true, or was true but could not be expected to confer a benefit. This roundtable will examine what effects litigation might have on innovation, the economic viability of products conferring health benefits, public health, and how to balance scientific uncertainty with consumer’s interests in novel and beneficial products.

4:00
Interactive Wrap Up Session: Should the Government Permit Companies with Substantiated Beneficial Health Benefits to be More Express in Their Health Claims?

This interactive wrap-up session will be led by the Boot Camp Co-Chairs and is specifically designed for delegate interaction. Come ready to give your opinion based on all that you’ve learned and heard of during the two-day event, and make the most of this free-flowing session.

5:00
Conference Ends