Thursday, September 26
Registration and Continental Breakfast
Laura Brown, Director, Educational Programs, Food and Drug Law Institute (FDLI)
Suzie L. Trigg, Partner, Haynes & Boone LLP and Chair, Food Advertising, Labeling, and Litigation Conference
Douglas W. Stearn, Deputy Director for Regulatory Affairs, Center for Food Safety and Applied Nutrition (CFSAN), FDA
The Impact of Recent Court Decisions: Deference, Precedent, Preemption, and the Impact on Marketing of Foods and Dietary Supplements
Supreme Court and Federal Appellate Court decisions can dramatically alter the landscape for food and dietary supplement marketing. This panel will discuss commercial speech in light of ABA v. San Francisco and NILFA v. Becerra, how several pending Supreme Court cases could impact FDA deference during litigation, and what the ultimate disposition of Frank v. Gaos could mean for Article III standing for class action plaintiffs. The recent trend of state courts allowing private lawsuits for FDCA violations, despite such actions seemingly being preempted by the Supreme Court’s 2001 decision in Buckman v. Plaintiff Legal Comm., will also be discussed.
Anthony J. Anscombe, Partner, Steptoe & Johnson LLP
Matthew G. Ball, Partner, K&L Gates LLP
Moderated by Amy E. Hancock, Executive Vice President and General Counsel, American Beverage Association
Coffee and Networking Break
A Scientific Look at the Impact of Sugar
Sugar has become a major source of contention in the food industry. But what exactly is sugar, and how does it impact health and the human body? This session will begin with a scientific explanation of sugar and its various forms. The panelists will then discuss how FDA and state regulatory agencies are addressing sugar, as well as sugar-centric industry litigation that has challenged marketing and advertising claims.
Allison C. Sylvetsky, Assistant Professor, George Washington University, Milken Institute School of Public Health
Kurt D. Weaver, Partner, Womble Bond Dickinson (US) LLP
Maia C. Kats, Of Counsel, Kaplan Fox & Kilsheimer LLP
Moderated by Suzie L. Trigg, Partner, Haynes & Boone LLP and Chair, Food Adverting, Labeling, and Litigation Conference
12:00 –1:15 PM
Advertising Claims Litigation: FTC Actions, and the NAD Process
Experts from both the FTC and NAD will share the perspective of their respective organizations on their roles in industry marketing, with a focus on recent actions, and claim substantiation for dietary supplement products.
Richard Cleland, Assistant Director, Division of Advertising Practices, Federal Trade Commission (FTC)
La Toya Sutton, Attorney, BBBNP, National Advertising Division (NAD)
Moderated by Diane McEnroe, Partner, Sidley Austin LLP
Rules of the Road for Marketing and Advertising on Social Media
Social media marketing and advertising is vital for reaching tomorrow’s potential customers. This panel will look at the unique challenges of promoting food and dietary supplement products online, such as using influencers, contracting with third party providers of social media services, and what to do in the case of ingredient-based commercial disparagement claims and misinformation.
Jason W. Gordon, Partner, Reed Smith LLP
Nury H. Yoo, Counsel, Keller and Heckman LLP
Holly A. Melton, Partner, Crowell & Moring LLP
Moderated by Ronald Y. Rothstein, Partner, Winston & Strawn LLP
Coffee and Networking Break
In Light of Changing Preferences: FDA Modernization of Standards of Identity and Labeling Claims
In the early 20th Century, the FDA Standards of Identity were an important tool for combatting misleading food advertising. However, many of these standards are now out of date, creating obstacles for product innovation. The FDA recently announced the removal two previous standards while indicating more significant changes are on the way. This panel will review the history of FDA Standards of Identity, what their modernization may or should look like in light of public health objectives and consumer perceptions, and the potential impacts these changes may have on industry.
John F. Johnson, III, Senior Associate & Managing Attorney, Benjamin L. England & Associate, LLC
Sarah Sorscher, Deputy Director of Regulatory Affairs, Center for Science in the Public Interest
Seth A. Mailhot, Partner, Husch Blackwell LLP
Moderated by Stuart M. Pape, Shareholder, Polsinelli PC
War Over Words: Plant-Based, Cellular, and Novel “Meats” and “Dairy” Products
“What’s in a name? That which we call ‘milk’ by any other name would taste as sweet.” The market for and availability of plant-based meat and dairy product alternatives has exploded in recent years, and commercially available cell-based (lab grown) meat is just around the corner. But not everyone agrees that companies should use words like “sausage” and “milk” for plant- or cell-based products. This panel will discuss the legal status of meat and dairy product terms, the regulatory agreement between FDA and USDA, attempts by states legislatures to restrict the use of terminology, and how these issues should be considered in light of First Amendment jurisprudence. Panelists will also discuss the feasibility and merits of proactively creating a regulatory framework for cell-based meat.
Donnelly L. McDowell, Senior Associate, Kelley Drye & Warren LLP
Nicole E. Negowetti, Lecturer on Law and Clinical Instructor, Animal Law and Policy Clinic, Harvard Law School
Nigel Barrella, Barrella Law PLLC
Shelly Garg, Member, Sandler, Travis & Rosenberg, P.A.