Food Law – Regulation, Compliance and Litigation

Continental Breakfast and Registration

Co-Chairs’ Opening Remarks

Tony Pavel
Deputy General Counsel, Global Food Law
Perfect Day (Washington, DC)

Sarah Sunday
Assistant General Counsel, Food Law
Nestlé USA Legal Department (Arlington, VA)

Developing Strategies to Address the Legal, Economic, and Environmental Impacts of Pandemic Induced Food Supply Chain Disruptions

Richard M. Blau
Partner
Gray Robinson P.A (Tampa, FL)

The COVID-19 pandemic disrupted food supply chains in ways that companies could not have anticipated, including the inability to source certain ingredients. This disruption led to a whole set of legal challenges including breach of contractual obligations, as well as economic and environmental concerns. In this opening session, our panelists will detail what we’ve learned about the supply chain and disruption, and detail best practices to the contractual, economic, and environmental supply chain challenges in a post-pandemic world.

• Understanding how to maintain and optimize production in a timely manner as we transition from pandemic to endemic
• Mitigating transport and co-packer challenges
• Navigating risks associated with the inability to source ingredients and the use of substitution
• Analyzing measures taken by the FDA regarding labeling flexibility for ingredients in view of shortages and sourcing inabilities
• Addressing price increases to certain ingredients needed for a product
• Analyzing packaging and chemical related challenges at the state level and how this may affect supply chain in the future
• Preventing heavy metals from entering the supply chain
• Developing strategies to address contractual obligations due to inability to source, produce and deliver
• Understanding the toll on workforce and related liabilities
• Appreciating the role of inspections in the supply chain
• Predicting what FDA inspections will look like post-COVID
• Explaining the pros and cons of in-person and remote and record access

Food Litigation in 2022: Analyzing Class-Actions Claims and Other Litigation Activity Affecting the Food and Beverage Industry

Sarah L. Brew
Partner
Faegre Drinker Biddle & Reath LLP

Sascha Henry
Partner
Sheppard Mullin LLP (Los Angeles, CA)

Lauren Medoff
Lead Counsel
7-Eleven, Inc. (Dallas, TX)

Trent R. Taylor
Partner
McGuireWoods LLP

In this session, our panelists will discuss and analyze the recent trends in food industry lawsuits.

• Assessing novel legal challenges and litigation associated with new industry trends and regulatory developments, Evaluating anticipated legal risk
• Survey of recent activity and analysis of uptick in class actions by plaintiff’s bar against the food industry
• Developing strong defenses that can withstand legal challenges by plaintiffs’ counsel
• Exploring risk assessment related to new litigation trends
• Analyzing recent class action claims against the food industry:
• PFAS
• Protein claims
• Flavor claim
• Pet food claims

Morning Networking Break

Formulating an In-Depth and Sound Approach to Substantiating Green Claims

Jennifer Adams
Partner
Amin Talati Wasserman (Chicago, IL)

Katherine Armstrong
Deputy Director, National Advertising Division
BBB National Programs

Leigh Barcham
Senior Counsel, Product Regulatory & Government Affairs
US Foods Inc. (Rosemont, IL)

• Understanding what “eco-friendly” claims mean
• Implementing and developing protocols to ensure that your green claims have adequate proofs
• Anticipating the FTC’s new standards for green marketing, aka “the Green Guides”
• Presenting green and eco-friendly claims in a way that cannot be attacked by the plaintiffs’ bar
• Reviewing and understanding green claim trends that are vulnerable to class-action activity
• Recyclable packaging
• Renewable energy

What The Food Industry Needs to Know About ESG Criteria Proofs and Commitments

Nicole Nice
Assistant General Counsel - Food Law
Mars, Incorporated (Denver, CO)

Sheila A. Millar
Partner
Keller and Heckman LLP (Washington, DC)

• Defining, establishing, and substantiating ESG commitments for the food industry
• Appreciating the importance of third-party certifications for ensuring ethical and sustainable practices for supply chain
• Devising strategies for food manufacturers to implement measures and establish proofs for carbon footprint reduction offsets
• Examining the necessary proofs for regenerative agriculture and other sustainability measures
• Sustainable farming
• Animal welfare
• Assessing legal obligations that may stem from ESG commitments Identifying potential liabilities that may arise from unsubstantiated or misleading ESG representations

Luncheon sponsored by:

Synthetic Biology 101: A Lawyer’s Guide to Understanding the Science Behind Plant-Based and Cell-Cultured Food Products

Deepti A. Kulkarni
Partner
Sidley Austin LLP (Washington, DC)

Steve L. Taylor, Ph.D.
Professor, Department of Food Science & Technology Co-Director, Food Allergy Research & Resource Program
University of Nebraska-Lincoln

Ryan Simon
Senior Director, Safety & Regulatory
Food & Nutrition Group

David Welch
Co-Founder
Synthesis Capital LLP (Frederick, MD)

Understanding How the Latest Legal Developments Affecting Plant-Based “Meats” and “Milks” are Changing the Food Landscape

Madeline Cohen
Regulatory Attorney
Good Food Institute (Washington, DC)

Susan Matthees Blum
Senior Food Lawyer
Cargill (Wayzata, MN)

Christian Flinn
Policy Associate
Plant Based Foods Association (Washington, DC)

• Exploring the latest developments on standards of identity for:
• Plant-based “meat” products
• Plant-based dairy alternatives
• Examining the anticipated new FDA regulatory framework for plant-based food products
• Understanding the laws and regulations around cell-cultured meat
• Analyzing the various states’ approaches to plant-based “meats” and “milks”
• Understanding the latest court decisions regarding labeling and usage requirements for the word’s “milk” and “meat” by plant-based food companies
• Defining “plant-based” and understanding when it’s a marketing advantage
• Identifying the naming conventions around naming plant-base products that don’t meet the FDA requirements
• Determining the types of claims can you make regarding plant-based products

Afternoon Refreshment Break

The Use of CBD and Cannabis in Food Products: Will There be A Path Forward?

Kelly D. Fair
US General Counsel
Canopy Growth Corporation (San Francisco, CA)

Jessica P. O’Connell
Partner
Covington & Burling LLP (Washington, DC)

• Analyzing the latest state and federal legislation regarding CBD, cannabis, and food
• Assessing the FDA’s current stance on the use of CBD in food products
• Developing risk assessment strategies for using CBD and cannabis in food product

The Golden State of Food: What Food Lawyers in All 50 States Need to Know About New and Evolving California Laws and Regulations Impacting Food

Nury Helena Yoo
Partner
Faegre Drinker Biddle & Reath LLP

• Analyzing the New California FAST Recovery Act (Assembly Bill No. 257) and anticipating its impact on the food industry
• Assessing whether other states will follow suit
• Understanding how California’s new Senate Bill 1383 will affect how companies think about reducing its carbon footprint, and identifying the right actions to be compliant
• Understanding how California’s new law and standards on recyclables will impact food packaging and labeling
• Determining how companies can prepare before the law’s implementation in 2024

Focus on Prop 65

• Examining changes to short form warnings
• Status of Prop 65 coffee litigation
• Acrylamide

Co-Chairs’ Closing Remarks

End of Day One

Cocktail Reception sponsored by:

Continental Breakfast and Registration

Co-Chair Opening Remarks

Tony Pavel
Deputy General Counsel, Global Food Law
Perfect Day (Washington, DC)

Sarah Sunday
Assistant General Counsel, Food Law
Nestlé USA Legal Department (Arlington, VA)

USDA Interview

Alexander Domesle
Senior Advisor for Chemistry, Toxicology, and Related Sciences Office of Public Health Science, Food Safety and Inspection Service
U.S. Department of Agriculture (Washington, DC)

Sarah Sunday
Assistant General Counsel, Food Law
Nestlé USA Legal Department (Arlington, VA)

Food Marketing in the Metaverse: A Food Lawyer’s Guide to A New Digital Reality, Including NFTs, and Gaming

Amy Ralph Mudge
Partner
Baker & Hostetler LLP (Washington, DC)

• What food lawyers need to know about the Metaverse
• Understanding the basics of NFTs and gaming, and how they are being used in food advertising
• Understanding the legal implications regarding the use of NFTs
• Exploring the risks of NFTs being offered in sweepstakes
• Determining the IP rights involved

Morning Networking Break

Understanding the Role of Influencers in the Food Industry: Influencer Claims, Testimonials, and Consumer Reviews

Megan K. Bannigan
Partner
Debevoise & Plimpton LLP (New York, NY)

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

Jim Dudukovich
Counsel
Bryan Cave Leighton Paisner LLP

• Identifying what food companies need to do in order to comply with the latest changes to FTC influencer guidance
• Developing strategies to protect yourself when using influencers
• Ensuring your influencers are doing proper disclosures
• Determining what responsibility both influencers and advertisers assume when share information with consumers
• Exploring key elements that you should include in influencer contracts
• Comprehending the extent to which a customer’s permission is needed to repurpose reviews
• Understanding how food companies and advertisers use customer reviews in their advertising
• Establishing protocols for food companies to safely adopt a customer review
• Grasping the implications of reviews on Amazon and other third-party websites
• Assigning the responsibility of the advertiser and the manufacturer for claims made in customer reviews

Rethinking the Role of Loyalty Programs: Considerations for Food Manufacturers

Andrew B. Lustigman
Partner
Olshan Frome Wolosky LLP (New York, NY)

Jessica Haefele
Senior Legal Counsel
Lindt, Ghirardelli, and Russell Stover Chocolates (Kansas City, MO)

• Examining traditional loyalty programs: what has been successful for food companies and what has not
• Understanding how sweepstakes and contests have been used in conjunction with loyalty programs
• Exploring how the COVID-19 pandemic has changed the way food companies think about loyalty programs and why many companies are choosing to restructure them
• Identifying goals and new models for successful loyalty programs
• What do food companies need to know about staying compliant with the California Consumer Privacy Act (CCPA) and other privacy laws when dealing with loyalty programs
• Determining whether a consumer has rights under the CCPA

Networking Lunch Break

Addressing the Unique Challenges of Advertising Food to Children

Lauren Eskenazi
Program Manager, Children's Food and Beverage Advertising Initiative (CFBAI)
BBB National Programs

Todd A. Grauel
Associate General Counsel
The Kraft Heinz Company (Chicago, IL)

Debra Policarpo
Senior Attorney, Children’s Advertising Review Unit (CARU)
BBB National Programs

Afternoon Networking Break

Exploring Continuing Antitrust Activity Impacting the Food and Beverage Industry

Amy Hancock
General Counsel/EVP, Legal and Regulatory Affairs
American Beverage Association (Washington, DC)

Karin F.R. Moore
Director
Hyman, Phelps & McNamara, P.C. (Washington, DC)

Kimberly Pryor
General Counsel
JBS USA Foods (Greeley, CO)

• Understanding how the food industry has seen an influx of antitrust concerns in the last year
• Examining price fixing allegations in the food industry in a post-pandemic era
• Exploring the impact of industry mergers resulting in alleged anticompetitive behaviors
• Analyzing recent anti-trust class-action claims

Focus Session: A Guide to Properly Executing a Food Recall

Daniel Dwyer
Partner
Kleinfeld Kaplan & Becker LLP (Washington, DC)

Joseph C. Scala
General Counsel
Beech-Nut Nutrition Company

• Identifying events which would prompt a food company to issue a recall
• Developing best practices for recalls
• What is the nature of the recall?
• What corrective actions should be taken?
• Evaluating the risks and benefits of cooperating with FDA in the course of a recall
• FDA’s recall and oversight authority with respect to food
• Voluntary recalls versus mandatory recalls
• Market withdrawals and stock recoveries
• What are the consequences of not instituting a recall?
• Invoking crisis management protocols
• Determining whether the pandemic has affected supplier ability to ensure quality control standards leading to more recalls
• Examining allergen labeling recalls and liability
• Analyzing recent food born illness outbreaks and the FDA’s response

Co-Chair Closing Remarks

End of Conference