Monday, September 27
3:15–3:30 PM
Welcome and Keynote Introduction
Amy Comstock Rick, President & CEO, FDLI
3:30–4:10 PM
Keynote Address
Claudine Kavanaugh, Director, Office of Nutrition and Food Labeling, Center for Food Safety and Applied Nutrition (CFSAN), Food and Drug Administration (FDA)
4:15 – 4:45 PM
Welcome Reception and Food Law Trivia
Tuesday, September 28
11:00 – 11:10 AM
Welcome
Steven Leslie, Deputy Director, Educational Programs, FDLI
Maia C. Kats, Of Counsel, Kaplan Fox & Kilsheimer LLP and Chair, Food Advertising, Labeling, and Litigation Conference
11:10 AM –12:30 PM
The Year in Review: Food and Dietary Supplement Industry Trends, Key Court Decisions, and Litigation Developments
Christopher A. Cole, Partner, Crowell & Moring LLP
Lorie Foster, Division Counsel, Abbott Nutrition
Theodora McCormick, Member, Epstein Becker & Green, P.C.
Moderated by August Horvath, Partner, Foley Hoag LLP
The conference will begin with a wide-ranging discussion of the most significant food and dietary supplement developments over the past year. Topics include major industry and consumer trends, key court decisions, recent class action filings, and federal advertising- and labeling-related enforcement activity.
12:30–12:50 PM
Break
12:50–1:50 PM
Labeling-Focused Legislation and Regulation: Bioengineered (BE) Disclosure, Cannabis-Derived Ingredients, Plant-Based Foods, and More
Gregory Jaffe, Director, Project on Biotechnology, Center for Science in the Public Interest (CSPI)
Samuel D. Jockel, Senior Associate, Alston & Bird LLP
Megan Olsen, Vice President and Associate General Counsel, Council for Responsible Nutrition
Moderated by Karin F. R. Moore, Director, Hyman, Phelps & McNamara, P.C.
The mandatory date for compliance with the BE Disclosure Standard is fast approaching (January 1, 2022). There is also pending legislation in Congress that would explicitly allow cannabidiol (CBD) as a dietary supplement ingredient. Meanwhile, states continue to pass their own cannabis legislation while still wrestling with appropriate terminology for plant-based “meat” and “dairy” products. Panelists will examine the breadth of recent activity focused on food and dietary supplement labeling, including what impact proposed legislation may have on currently unsettled labeling frameworks.
2:00 –3:00 PM
Targeted Marketing and the Constantly Evolving Landscape of Social Media Advertising
Jacqueline J. Chan, Partner, Kleinfeld, Kaplan & Becker, LLP
Frances Fleming-Milici, Director of Marketing Initiatives, Rudd Center for Food Policy and Obesity, University of Connecticut
Alaina Ingram, Senior Counsel – Marketing, Unilever United States, Inc.
Moderated by Nury H. Yoo, Counsel, Keller and Heckman LLP
An important component of advertising is reaching your target audience. However, serious questions arise if this targeting is directed towards specific racial groups and/or children while also promoting unhealthy products. This session will feature perspectives on targeted advertising in both traditional and newer forms of media, including challenges presented by frequent shifts in social media trends and considerations for companies looking to avoid government scrutiny and maintain brand integrity.
3:00–3:20 PM
Break
3:20–4:30 PM
Class Action Developments in Flavors, Geographic Origin Claims, and More
Matthew G. Ball, Partner, K&L Gates LLP
Maia C. Kats, Of Counsel, Kaplan Fox & Kilsheimer LLP and Chair, Food Advertising, Labeling, and Litigation Conference
Kirstin Mazzeo, Chief Counsel – Litigation, Campbell Soup Company
Abby Meyer, Associate, Sheppard, Mullin, Richter & Hampton, LLP
John Packman, Of Counsel, DLA Piper LLP (US)
Class action litigation remains pervasive in the food space, while dietary supplement manufacturers are facing increased scrutiny – and filings – by consumers and the Plaintiff’s bar. This comprehensive discussion will cover pending litigation and recent cases challenging product labels and marketing claims involving flavors, geographic origins, product benefits, “health halos,” serving sizes, and more.
4:40–5:30 PM
Consumer Surveys and Economic Analysis in Support of Litigation: How Much Weight Do They Carry in Court?
Sarah Butler, Managing Director, NERA Economic Consulting
Michael R. Reese, Founding Partner, Reese LLP
Christopher Van Gundy, Partner, Sheppard, Mullin, Richter & Hampton, LLP
Moderated by Anthony J. Anscombe, Partner, Steptoe & Johnson LLP
Consumer surveys and economic analyses can be critical in the class certification stage of a lawsuit. Panelists will discuss how to gather and compellingly present survey and economic data, how such reports have appeared to impact recent court decisions, and share what role this type of information should play in future cases.
5:30–6:00 PM
Student Member Debrief
Wednesday, September 29
11:00–11:05 AM
Welcome
Steven Leslie, Deputy Director, Educational Programs, FDLI
11:05 AM–12:05 PM
Heavy Metals, Glyphosate, and Other Environmental Contaminants: Assessing Risk and Informing Consumers
Conrad J. Choiniere, Director, Office of Analytics and Outreach, CFSAN, FDA
Marisa Kreider, Principal Science Advisor, Cardno ChemRisk
Keith A. Matthews, Of Counsel, Wiley LLP
Moderated by Stefanie Jill Fogel, Partner, DLA Piper LLP (US)
In February, the U.S. House of Representatives Subcommittee on Economic and Consumer Policy released a report on the presence of heavy metals in baby foods, which was followed by a flood of consumer confusion and private litigation (over 100 cases and counting). However, FDA and manufacturers have long been aware of this issue and continue to work towards lowering the levels that are present in finished products. Panelists will explore how Congressional and regulatory agency activity impacts consumer behavior and private litigation, and the potential risk posed by environmental contaminants such as heavy metals, glyphosate and other pesticides, and plastics such as per- and polyfluoroalkyl substances (PFAS).
12:15–1:10 PM
Labeling Disclosures: Regulations, Science, and the First Amendment
Zachary Fayne, Partner, Arnold & Porter Kaye Scholer LLP
Tom Jonaitis, Independent Consultant, EAS Consulting Group
Meredith Quinn Olearchik, Vice President and Associate General Counsel – Intellectual Property, Marketing and Food Law, Campbell Soup Company
Sarah Sorscher, Deputy Director, Regulatory Affairs, CSPI
California’s Prop 65 requires warnings for products that contain ingredients it considers carcinogenic or a reproductive hazard, and there are growing calls for increased health-related disclosures on food packaging at the federal, state, and local levels. However, some scientists have argued there is a disconnect between the science and required or proposed disclosures, while various legal scholars that have asserted that First Amendment protections prohibit this type of compelled commercial speech in the U.S. This session will offer examples of current and potential future disclosure requirements, then contrast these regulations with the current state of science and First Amendment case law.
1:10–1:40 PM
Break
1:40–2:50 PM
The Rise of Environmental, Social, and Governance (ESG) Claims
Dale J. Giali, Partner, Mayer Brown LLP
Kristin M. Kaplan, Of Counsel, Shook Hardy & Bacon, LLP
Emily R. Lyons, Senior Associate, Husch Blackwell LLP
When it comes to food and beverages, consumers are showing increased interest in more than just taste, cost, and basic nutrition, also seeking out brands that demonstrate corporate commitments to environmentally-friendly practices, social equity, and responsible governance. However, these terms are not regulated by FDA and represent serous class-action litigation risks. In this session, panelists will review popular ESG claims, options for substantiation, and what future federal guidance might look like.
3:00–3:50 PM
Lessons Learned from International Approaches to “Healthy” and Consumer Education
Jose Alberto Campos Vargas, Partner, Sánchez Devanny
Bill Wirtz, Senior Policy Analyst, Consumer Choice Center
Moderated by Michael T. Roberts, Executive Director for the Resnick Center for Food Law and Policy, UCLA School of Law
The U.S. is not the only country grappling with health-focused definitions, claims, and warnings, particularly when it comes to high-sugar products. This session will feature competing viewpoints on the impact of marketing restrictions and warning requirements in South America and the European Union, and whether similar regimes can or should be implemented in the U.S.
4:00–5:00 PM
A Completely Healthy, Natural, and Organic Conversation on the Future of Regulating Food and Dietary Supplement Advertising and Labeling
William C. Acevedo, Partner, Wendel Rosen LLP
Adam R. Fox, Partner, Squire Patton Boggs
Timothy G. Blood, Managing Partner, Blood Hearst & O’Reardon, LLP
Moderated by Stacy Cline Amin, Partner, Morrison & Foerster LLP
The conference will conclude with multiple diverse perspectives on the future of food and dietary supplement advertising and labeling, including meaningful and achievable steps over the next year towards balancing federal and state authority, the appropriate balance of government regulation and private litigation, and clarifying regulatory frameworks for new and novel technologies such as cell-based and alternative proteins.
5:00 PM
Conference Adjournment
