Why Attend?

Agenda

Agenda Subject to Change.
All Times are Eastern Time.

CLE

We are going virtual! To promote optimal interaction among attendees, the conference will feature panels with built-in audience participation and ample opportunities for attendees to connect with speakers and peers between sessions.

Tuesday, September 22: Lessons Learned and the New Normal

12:30 – 12:45 PM
Welcome

Amy Comstock Rick, President & CEO, FDLI
August T. Horvath, Partner, Foley Hoag LLP and Chair, 2020 Food Advertising, Labeling, and Litigation Conference Planning Committee

12:45–2:00 PM
New and Growing Advertising, Labeling, and Litigation Challenges Arising from the COVID-19 Pandemic

Matthew G. Ball, Partner, K&L Gates LLP
Christine Lee DeLorme, Attorney, Division of Advertising Practices, FTC
Daniel Fabricant, CEO and President, Natural Products Association
Jason W. Gordon, Partner, Reed Smith LLP
Moderated by Michael T. Roberts, Executive Director of the Resnick Center for Food Law and Policy, UCLA School of Law

The pandemic has impacted all industries, and the food and dietary supplement spaces are no exception. Panelists will discuss advertising and labeling issues that either arose or increased in importance over the past several months. Topics include FTC areas of focus, increased social media advertising and ensuing risks, how supply chain disruptions have impacted labeling, and worker safety and price-gouging litigation.

2:00–2:15 PM 
Networking Break

2:15–3:15 PM
The Rise of Wellness Products: Legal Issues for Supplement Health Benefit Claims and Foods that are More Than Just Food

Lorie Foster, Division Counsel, Abbott Nutrition
Laura MacCleery, Policy Director, Center for Science in the Public Interest
Cynthia L. Meyer, Partner, Kleinfeld Kaplan & Becker LLP
Raqiyyah Pippins, Partner, Arnold & Porter

Wellness products, such as health-promoting dietary supplements and foods with added nutritional benefits or ingredients, have grown in popularity. And the pandemic has accelerated this growth as consumers have shown increased interest in strengthening their immune systems and improving overall health. This panel will feature discussions on trends in CBD and other ingredients purported to have wellness benefits, the sometimes blurry line between drugs and dietary supplements, the extent to which structure/function claims are allowed for foods, and whether FDA should define or create a new category for these products.

3:15–3:30 PM
Networking Break

3:30–4:00 PM
FDA Update #1: Dietary Supplements

Steven Tave, Director, Office of Dietary Supplement Programs, FDA

In this first of two FDA sessions, Steven Tave will provide updates on priorities and areas of focus for dietary supplement regulation and enforcement in 2020 and beyond.

4:00–4:30 PM
FDA Update #2: Cannabis

Sharon Lindan Mayl, Senior Advisor for Policy, FDA

In our second FDA session, Sharon Mayl will provide an update on the status of Cannabis, including regulation and enforcement for CBD use in foods and dietary supplements, and recent FDA guidance documents.

4:30–5:00 PM
Joint Q&A
Sharon Lindan Mayl, Senior Advisor for Policy, FDA
Steven Tave, Director, Office of Dietary Supplement Programs, FDA
Moderated by Steven Leslie, Assistant Director, Educational Programs

5:00-5:45 PM
Virtual Welcome Reception

Wednesday, September 23:  Food Court 2020

12:00–12:05 PM 
Welcome

Laura Brown, Director, Educational Programs, FDLI

12:05–1:00 PM
Cooperation and Coordination by Federal Regulatory Agencies:  How FDA and DOJ Work Together on Food Litigation

Matthew Lash, Trial Attorney, United States Department of Justice
Sonia Nath, Associate Chief Counsel for Enforcement, FDA
Daniel Zytnick, Trial Attorney, United States Department of Justice
Moderated by John F. Johnson, Of Counsel, Shook Hardy & Bacon LLP

When the federal government pursues civil or criminal litigation against food companies and executives, it requires cooperation and coordination by government entities. Hear directly from FDA and DOJ lawyers on how they work together on food cases, including examples of how recent litigation was pursued and ultimately resolved.

1:00–1:15 PM 
Networking Break

1:15–2:15 PM
Are Your Cows Happy? Trends and Litigation Risks in Corporate Social Responsibility (CSR) Claims

Timothy G. Blood, Managing Partner, Blood Hurst & O’Reardon LLP
Karin F.R. Moore, Director, Hyman, Phelps & McNamara PC
Nury H. Yoo, Counsel, Keller and Heckman LLP
Moderated by Sarah Roller, Partner, Kelley Drye & Warren LLP

As consumers show increased interest in socially conscious and environmentally-friendly companies and manufacturing practices, there has been a corresponding increase in CSR claims on food products. In this session, panelists will cover trends in CSR claims – including “upcycled,” “sustainable,” “biodegradable,” and “ethically sourced” – as well as recent litigation challenging such terms.

2:15–2:30 PM 
Networking Break

2:30–3:30 PM
Class Action Update: Latest Developments on Flavors, Natural, Sugar, and Other Product Claims

David Biderman, Partner, Perkins Coie LLP
Veronica Colas, Senior Associate, Hogan Lovells LLP
Maia Kats, Of Counsel, Kaplan Fox & Kilsheimer LLP
Amy Norris, Executive Counsel, Clif Bar & Company and Member, FDLI Board of Directors

Hundreds of false advertising claims are filed against food and dietary supplement companies each year, and even the pandemic has not stopped this trend. This session will feature multiple perspectives on the liability theories and decisions in recent food false advertising cases, including whether a product must include the ingredient whose flavor it purports to contain, the ongoing debate on what constitutes a “natural” ingredient or flavor, and the interplay between “healthy” claims and sugar content.

3:30–3:45 PM 
Networking Break

3:45–4:45 PM
The Evolving Reasonable Consumer Standard, Developments in Preemption, and Other Litigation Trends

Dale J. Giali, Partner, Mayer Brown LLP
Abby Meyer, Lead Associate, Food and Beverage Team, Sheppard, Mullin, Richter & Hampton LLP
Michael R. Reese, Founding Partner, Reese LLP
Moderated by Kurt D. Weaver, Partner, Womble Bond Dickinson LLP

A comprehensive discussion about food litigation requires looking at more than specific court decisions – it should include a review of the underlying basis for these decisions and whether trends can be identified. The session will feature recent decisions from within and outside the food industry considering the context of the reasonable consumer standard, federal preemption, and other legal principles.

4:45–5:30 PM 
Virtual Happy Hour

Thursday, September 24:  The Road Ahead

12:00–12:05 PM 
Welcome

Steven Leslie, Assistant Director, Educational Programs, FDLI

12:05–1:05 PM
What’s in a Name? Plant-Based Products, Standards of Identity, and Promoting Innovation While Protecting Consumers

Stefanie Jill Fogel, Partner, DLA Piper LLP
Nicole Manu, Staff Attorney, The Good Food Institute
Moderated by Evangelia C. Pelonis, Partner, Keller and Heckman LLP

Plant-based products have been increasing in popularity for years, with plant-based “meats” showing even further growth during the pandemic due to traditional meat shortages. However, questions remain over the appropriate terms and labels for these products in light of both domestic and international consumer knowledge and expectations. This panel will feature a discussion on current labeling and advertising issues and challenges for plant-based products, as well as an update on FDA’s continuing efforts to modernize its standards of identity.

1:05–1:15 PM 
Break

1:15–2:15 PM
The North American Market: Considerations for Products Sold Across the United States, Canada, and Mexico

Eileen M. McMahon, Partner, Torys LLP
John M. Packman, Of Counsel, DLA Piper LLP
Suzie Loonam Trigg, Partner, Haynes and Boone LLP
Moderated by José Alberto Campos-Vargas, Partner, Sanchez Devanny

The 1994 North American Free Trade Agreement (NAFTA) began a period of unprecedented trade between the US, Canada, and Mexico, and this trend appears likely to continue under the new US-Mexico-Canada Agreement (USMCA). As a result, US foods and dietary supplements have increasingly found their way into Mexican and Canadian markets. This creates unique labeling challenges, particularly as manufacturers often have less control of their products as they move further down the supply chain. This session will cover how Mexican and Canadian laws, regulations, and litigation risks differ than those of the US, as well as practical advice for companies seeking to sell products in neighboring markets.

2:15–2:45 PM 
Afternoon Networking Break

2:45–3:30 PM
Point/Counterpoint: The Future of Prop 65

Howard Hirsch, Partner, Lexington Law Group
Trenton H. Norris, Partner, Arnold & Porter LLP

This session will feature two attorneys – one who engages in private enforcement of Prop 65, and another who defends companies in Prop 65 actions. They will each offer perspectives on recent Prop 65 activity, key developments to monitor going forward, and what short- and long-term changes each would like to see.

3:30–3:40 PM 
Break

3:40–4:30 PM
On the Horizon: Near-Future Legal Challenges for Food and Dietary Supplement Labeling and Advertising

Samuel D. Jockel, Senior Associate, Alston & Bird LLP
Jessica P. O’Connell, Partner, Covington & Burling LLP
Lanny Schimmel, General Counsel, Kerry, Inc.
Moderated by August T. Horvath, Partner, Foley Hoag LLP and Chair, Food Advertising, Labeling, and Litigation Conference Planning Committee

Food technology is evolving at a rapid rate, and laws and regulations are having trouble keeping up.  Panelists will look ahead to both known and unknown new regulatory frameworks – such as the Bioengineered Disclosure Standard and joint FDA and USDA regulation of cell-cultured meats – and discuss what these new landscapes may look like. Panelists will also discuss emerging technologies and whether they fit into existing frameworks or will require new approaches by federal and state agencies and courts.

4:30–5:00 PM
Conference-Closing Keynote: The Future of Food

Jack Bobo, CEO, Futurity

5:00 PM 
Closing Remarks and Adjournment

Steven Leslie, Assistant Director, Educational Programs, FDLI