Agenda

Pre-Conference Workshops

Food Law and Regulation 101: A Primer on Applicable Laws, Regulations and Key Agencies Having Authority over Food

Mar 31, 2020 9:00am – 12:30pm

Speakers

Riëtte van Laack
Director
Hyman, Phelps, & McNamara, P.C.

CBD and Cannabis Working Group for the Food Industry: Making Sense of the Confusing Regulatory State of Affairs

Mar 31, 2020 1:30pm – 5:00pm

Speakers

Ashish Talati
Partner
Amin Talati Wasserman LLP

Day 1 - Wednesday, April 1, 2020

7:30
Registration and Continental Breakfast
8:15
Co-Chairs’ Opening Remarks
8:30

IN-HOUSE COUNSEL FUTURE FORECASTS ROUNDTABLE

Analyzing the Latest Trends, Deciphering Recent Regulatory Developments, and Anticipating Potential Liabilities for Food Companies
9:45
Morning Coffee Break
10:00
Plant-Based “Meats” and “Milks”: Examining the Standards of Identity and FDA’s/USDA’s Anticipated Regulatory Platform
11:15

SPOTLIGHT SESSION

Using CBD Hemp Oil in Food Products
12:00
Networking Luncheon
1:15
Class Action Strategies: Evolving Theories, Defense Tactics, and Resolutions
2:15
A Townhall with the FDA and USDA
3:15
Afternoon Refreshment Break
3:30
FDA and USDA Rule Roundup
5:00
Conference Adjourns

Day 2 - Thursday, April 2, 2020

7:45
Continental Breakfast
8:30
Co-Chairs’ Opening Remarks and Recap of Day One
8:45
Understanding the Impact of the Current Trade and Tariff Environment on the Food Industry
9:45
Examining the Latest Prop 65 Developments
10:45
Morning Networking Coffee Break
11:00

FOCUS ON RECALLS

Examining Incidents that Give Rise to Reporting Obligation and Recalls
12:00
Networking Lunch
1:00
Developing Effective Crisis Management Strategies that Work in Tandem with a Recall Plan
2:00

SUPPLY CHAIN MANAGEMENT

Maintaining the Integrity of the Supply Chain by Working Effectively with Your Suppliers
3:00
Afternoon Networking Break
3:15
Addressing the Transparency Challenges within the Global Supply Chain
4:15

ALLERGENS ROUNDUP

Allergens: The Liability Implications of Voluntary Disclosures and Recalls
5:00
Conference Ends

Post-Conference Workshop

Food Advertising & Marketing Law Master Symposium

Apr 3, 2020 7:30am – 5:00pm

Day 1 - Wednesday, April 1, 2020

7:30
Registration and Continental Breakfast
8:15
Co-Chairs’ Opening Remarks

Heili Kim
Partner
Faegre Drinker

Danielle Lemack
Assistant General Counsel
HP Hood LLC
8:30

IN-HOUSE COUNSEL FUTURE FORECASTS ROUNDTABLE

Analyzing the Latest Trends, Deciphering Recent Regulatory Developments, and Anticipating Potential Liabilities for Food Companies

Mark Leonard
General Counsel
Jelly Belly Candy Company (Fairfield, CA)

Miriam Maxwell
Sr. Principal Regulatory Scientist
Ocean Spray Cranberries Inc (Chicago, IL)

In this sessions our leading in-house counsel will discuss major challenges impacting their companies and strategies for approaching them in order to keep their companies compliant.

  • Examining the greatest challenges in-house counsel face now
  • From where do in-house counsel expect to see potential liabilities arising?
  • Balancing the need to be innovative and in step with consumer preferences with legal and regulatory requirements
  • A walk-through strategies in-house counsel employ when their companies face a claim
  • Best practices for responding to pre-suit notice letters
  • Devising best practices for counseling sales and marketing teams when responding to consumer requests
9:45
Morning Coffee Break
10:00
Plant-Based “Meats” and “Milks”: Examining the Standards of Identity and FDA’s/USDA’s Anticipated Regulatory Platform

Rick Duda
Vice President, Associate General Counsel - Operations
Ingredion Incorporated

Heili Kim
Partner
Faegre Drinker

In the era when consumers increasingly shop in a way consistent with their values, this session will focus on the most recent developments involving protein-alternative foods as well as the actual and anticipated regulatory framework.

  • Exploring the latest developments with respect to the standards of identity for:
    • Plant-based “meat” products
    • Plant-based dairy alternatives
  • Plant-based vs. lab-grown meat: What are the different regulatory requirements?
  • Examining the anticipated FDA/USDA regulatory framework
  • Analyzing the various states’ approaches to plant-based “meats” and “milks”: will the current approaches by some states result in a state-by-state patchwork?
  • What can a company interested in advertising a product that doesn’t fit a particular standard of identity do at this time?
    • Suggested ways for mitigating risk posed by plaintiffs’ attorneys and various state laws
  • What are the anticipated class action theories?

Process for developing and labeling of protein-alternative foods

  • When developing these products, what are the premarket requirements?
  • What needs to be submitted to the FDA/USDA?
  • How can safety be established?
  • How long is it expected this process to take?
11:15

SPOTLIGHT SESSION

Using CBD Hemp Oil in Food Products

Jeffrey B. Brams
GC, & VP R&D and Regulatory
Garden of Life, LLC (Palm Beach Gardens, FL)

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D. Michael Stroud
Jr., Partner
Nossaman LLP
12:00
Networking Luncheon
1:15
Class Action Strategies: Evolving Theories, Defense Tactics, and Resolutions

Hannah Y. Chanoine
Partner
O'Melveny & Myers LLP

Andrew Tulumello
Partner
Gibson Dunn LLP

Shayon T. Smith
Assistant General Counsel - Global Litigation, Law Department
The Hershey Company (Hershey, PA)

  • Analyzing plaintiffs bar’s recent successful theories
    • What kinds of claims are yielding results?
  • Latest developments with the slack fill claims: are these claims here to stay?
  • State of the union with respect to the “natural” “all natural” and “healthy” claims
    • Has FDA’s formal guidance on healthy brought desired clarification?
  • Examining the status of the geographic origin claims: what have been the recent developments?
  • Devising actionable strategies for avoiding these claims
  • Forecasting the next wave of class actions: Flavor claims – vanilla, chocolate, etc.
2:15
A Townhall with the FDA and USDA

Dr. Denise Eblen
Assistant Administrator Dr.
Office of Public Health Science, USDA (Washington, D.C.)

Hear from FDA and USDA representatives responsible for the implementation and oversight of food safety regulations within their agencies as they address current and proposed rules, recent regulatory actions, and priorities for 2020 and beyond.
3:15
Afternoon Refreshment Break
3:30
FDA and USDA Rule Roundup

Daniel Dwyer
Partner
Kleinfeld Kaplan & Becker LLP

Maile Gradison Hermida
Partner
Hogan Lovells LLP

Isha S. Saini
Director, Regulatory Affairs
Danone North America

Nutrition Facts Label 2020 Implementation Analysis

  • What will FDA’s enforcement of the new nutrition facts label look like given that food companies can use old labels until December 31st of 2019?
  • Is it anticipated that the enforcement will start later than 2020?
  • Understanding clean labeling
  • What claims are currently high-risk claims and what can be done from a labeling perspective to reduce them?

Examining the Status of the Implementation of Bioengineered Foods Disclosure Requirement

  • Examining the developments with the implementation of the bioengineered food disclosure requirement
    • Have food companies experienced any practical obstacles to the implementation
  • Addressing the issues involving testing by the FDA, consumers, and competitors
  • Developments with respect to FDA enforcement
  • Analyzing the developments with the gene-edited foods and the industry’s push for gene-edited foods to not get the same reception as the GMO foods

FSMA State of the Union

  • Examining the FDA’s latest FSMA enforcement through inspections
    • Is FSMA changing the way FDA inspects plants?
    • Do food companies see this as a continuing challenge or not really?
  • Analyzing the impact of the new executive order limiting FDA’s guidance applicability
  • Examining the impact of FSMA’s regulation prohibiting food processors and suppliers to contract away and shift food safety responsibility onto the other party
  • Exploring the role of AI and its potential impact on food safety enforcement
5:00
Conference Adjourns

Day 2 - Thursday, April 2, 2020

7:45
Continental Breakfast
8:30
Co-Chairs’ Opening Remarks and Recap of Day One
8:45
Understanding the Impact of the Current Trade and Tariff Environment on the Food Industry

Delacy Peters
Of Counsel
Segal McCambridge Singer & Mahoney LLP

  • What foods/ingredients are being targeted right now?
  • How to start to reduce the cost of overhead as a food company?
  • Practical tips for companies to insulate themselves from the current negative effects of tariffs
  • Exploring industry efforts to seek exclusion opportunities or sourcing their ingredients from areas not affected by tariffs
  • Understanding the long-term effect of the current trade and tariff environment
9:45
Examining the Latest Prop 65 Developments

Jennifer Elmer
Senior Legal Counsel – Americas
Barilla America, Inc. (Northbrook, IL)

Stanley Landfair
Partner
Dentons LLP

Carol J. Monahan Cummings (Invited)
Chief Counsel
Office of Environmental Health Hazard Assessment

  • Addressing plaintiffs’ attorneys successful arguments with respect to glyphosate
  • Assessing California Chamber of Commerce’s suit against OEHHA over acrylamide
  • Analyzing the latest enforcement actions involving Prop 65
  • Examining developments with synthetic colors and Perfluoroalkyl Substances (PFAS)
  • Keeping the successful coffee example in mind, are there ways to keep ingredients off the Prop 65 list?
10:45
Morning Networking Coffee Break
11:00

FOCUS ON RECALLS

Examining Incidents that Give Rise to Reporting Obligation and Recalls

Brian P. Sylvester
Special Counsel
Foley & Lardner LLP

  • When does the Reportable Food Registry reporting obligation arise?
  • What events would prompt a food company to issue a recall?
    • What sort of interactions should a recalling company have with regulators?
    • How should parties within the supply chain address recall exposure among themselves? What contractual clauses are food companies using to transfer that risk?
  • Addressing concerns around environmental positives and “Zone 1”
  • Best practices for handling customer reports of positive tests
  • Understanding the importance of and effectively handling CDC or public health agency investigations
  • Exploring the use of block chain as a potential protection against recalls
12:00
Networking Lunch
1:00
Developing Effective Crisis Management Strategies that Work in Tandem with a Recall Plan

Danielle Lemack
Assistant General Counsel
HP Hood LLC

Suzanne Trigg
Partner
Haynes Boone LLP

  • Devising effective crisis management and communication plans
  • Exploring cost-efficient ways for developing a message and addressing customers’ expectations
  • Managing various regulatory and legal considerations during a crisis
  • Working with outside experts and PR firms while maintaining attorney-client privilege
2:00

SUPPLY CHAIN MANAGEMENT

Maintaining the Integrity of the Supply Chain by Working Effectively with Your Suppliers

Jonathan Cohen
Partner
K&L Gates LLP

Stuart M. Pape
Shareholder
Polsinelli PC

  • What do ingredients suppliers need to focus on to make sure their customers are comfortable with various suppliers’ assurances and certifications?
  • What third-party certifications are among the most useful for ingredients suppliers to obtain in order to help their customers’ compliance efforts?
  • How can food companies protect themselves against supplier fraud?
3:00
Afternoon Networking Break
3:15
Addressing the Transparency Challenges within the Global Supply Chain

David Biderman
Partner
Perkins Coie LLP

Brandon W. Neuschafer
Partner
Bryan Cave Leighton Paisner LLP

In the era in which consumers demand transparency and ensuring that manufacturers are sourcing in socially responsible and sustainable ways, this session will explore challenges that food processors face given the global nature of the supply chains.

  • Role of the 3rd-party certifications as it relates to supply chain transparency
  • Examining legal issues surrounding 1st party certifications that some food companies develop
    • E.g., if a company develops its own non-GMO seal and uses less well-known 3rd party to help with development of that seal, does that pose a problem for a company?
  • Best practices for assuring consumers about reliability and moral rectitude of supply chains
    • Sustainable sourcing and production
    • Child labor/forced labor
    • Animal welfare
    • Packaging and plastic reuse
  • Examining the latest developments with respect to FDA’s enforcement of the Foreign Supplier Verification Program
4:15

ALLERGENS ROUNDUP

Allergens: The Liability Implications of Voluntary Disclosures and Recalls

Timothy Dietrich
Partner
Barley Snyder LLP

Trent Taylor
Partner
McGuireWoods LLP

  • Addressing regulatory and liability implications of voluntary allergen disclosures
  • Allergen controls and CGMP in manufacturing
  • When does an undisclosed allergen trigger a recall?
  • Emerging allergen regulatory and liability developments
5:00
Conference Ends

Food Advertising & Marketing Law Master Symposium

Apr 3, 2020 7:30am – 5:00pm

What is it about?

7:30 Registration and Continental Breakfast
8:15

Co-Chairs’ Opening Remarks

Matt Griffin
Deputy General Counsel
Ferrara Candy Company (Oakbrook Terrace, IL)
8:30
Food Industry Marketing and Legal Professional Roundtable
Encouraging Inter-Departmental Cooperation and Working Effectively Together

Matt Griffin
Deputy General Counsel
Ferrara Candy Company (Oakbrook Terrace, IL)

  • How do marketing professionals for the food industry think through a claim development process?
  • What do they need from a legal department in order to effectively perform their jobs?
  • Developing an early cross-communication strategy between R&D, Marketing, and Legal departments in the food industry
  • Understanding the importance of including legal departments during the research and development stage of a food product
  • Communicating effectively with claims team members so that they understand the risks of pursuing particular claims
  • Suggesting adjustments to food claims language to reach the joint goal of developing a creative and a compliant claim
9:45 Networking Coffee Break
10:00

CLAIM SUBSTANTIATION

Latest Claims Substantiation Trends Impacting Food Industry

Joy L. Fontaine
Director & Senior Counsel, Marketing & Regulatory/Food Law
Mondelēz Global LLC (East Hanover, NJ)

Claudia Lewis
Partner
Venable LLP (Washington, D.C.)

  • Examining the FTC’s recent stance on claim substantiation in the food industry
  • Exploring recent NAD activity with respect to food and dietary supplement claims
  • Understanding how to properly substantiate claims such as “non-GMO,” and organic, sourcing records on farms, seeds used in crops in order to trace them back to the food products, etc.
  • How does a marketing department’s risk tolerance impact how food claims are handled?
  • How far back in the food supply chain does substantiation need to take place (i.e., just the immediate suppliers or suppliers’ suppliers, etc.)
  • Health claims: Competent and reliable scientific evidence – what kind of evidence is considered enough science?
  • Can implied health claims be made at all (e.g., picture, impression of an advertisement, using language that suggests that a product is better/more nutritious)?
  • What level of substantiation is needed for the less concrete food claims?
  • When making a specific food claim, when is it a claim which needs to be substantiated and when is it puffery which doesn’t need to be substantiated?
  • Dietary Supplements: Lessons learned from FTC’s latest warning letters and enforcement actions
    • Examining related FDA activity
11:15
NAD and FTC Townhall

David O’Toole
Senior Staff Attorney
Federal Trade Commission (Wilmette, IL)

Robyn Lewis
Attorney
National Advertising Division, BBB Programs Inc. (New York, NY)

Hear directly from the FTC and NAD on how they evaluate various claims in food advertisements and criteria they use to make these assessments.
12:00 Networking Luncheon
1:00
SOCIAL MEDIA AND MARKETING

Megan K. Bannigan
Counsel
Debevoise & Plimpton LLP

Examining How to Successfully Manage Social Media Campaigns Related to Food Products
  • What goes into the development of a successful social media campaign involving food products?
  • What does an actionable social media policy look like?
    • Best strategies for training non-lawyers to review tweets
    • Right of publicity
    • Use of 3rd party content
    • Copy right and trademark concerns

Advertising food products on new and upcoming social media platforms
  • Exploring effective ways for advertising on new social media platforms such as Twitch and TikTok as compared to Facebook, Instagram, or Twitter
  • Addressing the challenges of complying with various platforms’ rules in addition to complying with legal requirements
2:00
Mitigating Risks Associated with User-Generated Content for Food

David G. Mallen
Partner
Loeb & Loeb LLP (New York, NY)

  • How can food companies and advertisers use customer reviews in their advertising?
  • What does it mean if a food company adopts a customer review? Is it a testimonial, and if so, what are the guidelines to be followed?
  • When are advertisers, and food companies who employ them, responsible for statements made in customer reviews?
  • When and how to disclose whether reviewers are compensated?
  • Addressing recent FTC enforcement actions
2:45
Clarifying the Role of Influencers/Virtual Influencers in the Food Industry: Can They Say What A Food Company Cannot?

Andrew B. Lustigman
Partner
Olshan Frome Wolosky LLP

Millie Yeo
Senior Counsel – Marketing
Whole Foods Market (Austin, TX)

  • Implementing best strategies for engaging with influencers
    • Can they say what a food company isn’t allowed to say about its product?
    • How to most effectively audit what influencers say
  • Contracting with influencers: What are a food company’s obligations toward influencers and vice versa?
    • When having a contract is not enough: Making sure on an ongoing basis that influencers disclose their engagement by a food company
  • What legal challenges should the food industry be cognizant of with respect to virtual influencers?
  • Since what virtual influencers say is not by a person, is that considered a testimonial? If so, whose is it if it isn’t a person?
3:30 Afternoon Networking Break
3:45
Understanding the Role of Sweepstakes, Contests and Loyalty Programs in Food Advertising

Katie Bond
Partner
Amin Talati Wasserman LLP (Washington, D.C.)

  • What are the rules of the road with respect to the use of loyalty programs, sweepstakes, and contests by food companies?
  • Addressing ways for implementing these programs effectively
  • Pepsi’s example of integrating an entirely new loyalty programs
4:30
Addressing the Unique Challenges When Advertising Food Products to Children

Amy Ralph Mudge
Partner
Baker & Hostetler LLP (Washington, D.C.)

  • Exploring CARU’s recent agenda and priorities relative to the substantiation of food claims in children’s advertisements
  • Utilizing necessary disclosures when communicating with a child audience
  • Understanding that a parent is the focus of the food ad and related claims as opposed to a child
  • Ensuring endorsers meet the necessary substantiation requirements for advertising to children
  • Discussing potential penalties for misrepresenting a food product to a child
5:15 Symposium Ends

Food Law and Regulation 101: A Primer on Applicable Laws, Regulations and Key Agencies Having Authority over Food

Mar 31, 2020 9:00am – 12:30pm

Riëtte van Laack
Director
Hyman, Phelps, & McNamara, P.C.

What is it about?

This primer will provide attendees with an essential an in-depth working knowledge of the cornerstone laws and regulations applicable to food as well as the administrative bodies responsible for the regulation of food. The discussions during this workshop will set the stage for the main conference by helping you thoroughly comprehend the complexities and challenges associated with the laws, regulation and governance of food.
  • Defining the terms “food” and “beverage” as per the Food, Drug and Cosmetic Act
  • Overview of governing agencies having jurisdiction and authority over food regulation
  • Understanding the role of the Department of Health and Human Services in food regulation
    • U.S. Food and Drug Administration (FDA)
    • National Institutes of Health (NIH)
    • Center for Disease Control (CDC)
  • Review of applicable laws from which FDA derives its authority over food regulation
    • Food, Drug, and Cosmetics Act (FDCA)
    • Fair Packaging and Labeling Act
    • Food Safety Modernization Act (FSMA)
  • Comprehending the U.S. Department of Agriculture’s (USDA’s) authority in food regulation and how it compares to that of FDA’s authority
    • Food Safety and Inspection Service
  • Review of applicable laws from which USDA derives its authority over food regulation
    • Meat, Poultry, and Egg Products Inspection Acts
    • Egg Products Inspection Act
    • Federal Meat Inspection Act
    • Poultry Products Inspection Act
  • Appreciating the FTC’s unique role in food regulation
    • Federal Trade Commission Act
    • The Lanham Act
  • Identifying other applicable agencies responsible for food regulation
    • Department of Commerce
    • Department of Transportation
    • Department of Justice
  • Overview of other laws governing or otherwise impacting the regulation of food products
    • Public Health Service Act
    • Poultry Products Inspection Act
    • Bioterrorism Act
    • Sanitary Food Transportation Act

CBD and Cannabis Working Group for the Food Industry: Making Sense of the Confusing Regulatory State of Affairs

Mar 31, 2020 1:30pm – 5:00pm

Ashish Talati
Partner
Amin Talati Wasserman LLP

What is it about?

  • What are the differences between seed which is safe, CBD oils and variants of CBD generally not recognized as safe?
    • CBD as permissible in certain circumstances while THC is not
  • What is FDA’s current stance on the uses of CBD in food products?
  • What does state-level regulation look like?
  • In the absence of FDA’s regulation and resultant state activity, what is a suggested strategy for food companies to employ at this time?
  • What can companies who are currently launching products containing CBD expect to see from FDA?
    • Marketing and labeling: Addressing the effect of making claims that can’t be substantiated
  • What are the anticipated claims involving CBD products?
  • Should food companies which are not currently using CBD products anticipate litigation risks if CBD products accidentally enter their supply chain through cross-contamination?