Food Advertising & Marketing Law Master Symposium

Apr 3, 2020 7:30am – 5:00pm

7:30 Registration and Continental Breakfast

Co-Chairs’ Opening Remarks

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

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


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
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
NAD and FTC Townhall

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

Robyn Lewis
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

Megan K. Bannigan
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
Mitigating Risks Associated with User-Generated Content for Food

David G. Mallen
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
Clarifying the Role of Influencers/Virtual Influencers in the Food Industry: Can They Say What A Food Company Cannot?

Andrew B. Lustigman
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
Understanding the Role of Sweepstakes, Contests and Loyalty Programs in Food Advertising

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

Raqiyyah Pippins
Arnold Porter (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
Addressing the Unique Challenges When Advertising Food Products to Children

Amy Ralph Mudge
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