Why Attend

Agenda

Agenda Subject to Change.
All Times are Eastern Time.

Location & CLE

Wednesday, September 28

9:00–9:30 AM  
Registration and Continental Breakfast

9:30–10:50 AM  
FDLI Welcome and Keynote Addresses

FDLI Welcome and Opening Remarks
Christine M. Simmon, President & CEO, FDLI
Christopher Van Gundy, Partner, Sheppard Mullin Richter & Hampton LLP and Chair, 2022 Food Advertising, Labeling, and Litigation Conference Planning Committee

Keynote Addresses and Joint Q&A
Conrad Choiniere, Director, Office of Analytics and Outreach, Center for Food Safety and Applied Nutrition (CFSAN), US Food and Drug Administration (FDA)
Cara Welch, Director, Office of Dietary Supplement Programs (ODSP), CFSAN, FDA

10:50–11:10 AM  
Networking and Refreshment Break

11:10 AM–12:30 PM 
Food and Dietary Supplements Legislation, Regulation, and Litigation: Key Developments Over the Past Year
Ricardo Carvajal, Director, Hyman, Phelps & McNamara, PC and Member, FDLI Board of Directors
Jensen N. Jose, Regulatory Counsel, Center for Science in the Public Interest
Megan Olsen, Senior Vice President & General Counsel, Council for Responsible Nutrition
Claudia M. Vetesi, Partner, Morrison & Foerster LLP
Moderated by Christopher Van Gundy, Partner, Sheppard Mullin Richter & Hampton LLP and Chair, 2022 Food Advertising, Labeling, and Litigation Conference Planning Committee

This discussion will cover the most important legal developments and trends in the food and dietary supplement spaces. Topics will include pending Congressional legislation, state-level regulatory activity, federal agency enforcement actions, and recent class action decisions and filing trends.

12:30–1:30 PM  
Networking Luncheon

1:30–2:30 PM
Recent Class Actions Challenging Nutrient Content and Health Claims: Protein, Sugar, and More
Matthew G. Ball, Partner, K&L Gates LLP
Maia Kats, Managing Attorney, Just Food Law PLLC
Kristen Shemory, Counsel, Nutrition Legal Operations, Abbott Nutrition
Moderated by Evangelia C. Pelonis, Partner, Keller and Heckman LLP

FDA regulates both nutrient content and health claims, however they are frequently contested as misleading in consumer class action litigation. Panelists will review settlements and pending cases involving alleged mislabeling of protein content and percentage daily value (%DV) as well as challenges to health-related claims due to added sugar content. Panelists also will discuss the different rules for making front-of-pack and back-of-pack claims, plus the potential impact of FDA’s expected guidance on “healthy” claims and development of a universal symbol.

2:40–3:40 PM
Labeling Challenges in the Rapidly Evolving Alternative Protein Market
Jana Caracciolo, Staff Attorney, The National Agricultural Law Center
Kelly G. Laudon, Of Counsel, Jones Day
Alyssa B. Samuel, Senior Associate, Husch Blackwell LLP
Moderated by Stefanie Jill Fogel, Partner, DLA Piper LLP (com)

Alternative meat, dairy, egg, and seafood products continue to grow in popularity, with some predicting the alternative protein market will generate hundreds of billions of dollars in annual sales and constitute upwards of twenty percent of the global protein market within the next ten to fifteen years. However, these products do not always fit neatly in existing regulatory schemes and may confuse consumers about health benefits and nutrition profiles. Panelists will assess current and proposed legislation; regulatory activity, including FDA’s expected draft guidance on plant-based alternative dairy products; and current and future litigation risks.

3:40–4:00 PM
Networking and Refreshment Break

4:00–5:15 PM
Litigation and Standards for Environmental, Social, and Governance (ESG) Claims
Christopher A. Cole, Partner, Crowell & Moring LLP
Kirstin Mazzeo, Chief Counsel – Litigation, Campbells Soup Company
Corey L. Norton, Vice President, Supply Chain Legality, World Wildlife Fund
Amaru J. Sanchez, Associate, Wiley Rein LLP
Moderated by Thomas Tobin, Associate, Perkins Coie LLP

Consumers and investors continue to show increasing interest in ESG commitments by companies, and the food industry has responded in kind. However, there are few widely accepted industry standards for many ESG claims such as “climate friendly” and “socially responsible,” making these claims an increasingly frequent source of litigation by consumers and interest groups. Panelists will address recent ESG claim-based litigation, discuss existing certification programs and Federal Trade Commission’s (FTC’s) Green Guides, and approaches to new and improved standards to create certainty for all parties.

5:15–6:45 PM
Conference Reception (In-Person Only)

Thursday, September 29

9:00–9:30 AM
Registration and Continental Breakfast

9:30–10:45 AM
FDLI Welcome and Panel Discussion

FDLI Welcome
Steven Leslie, Deputy Director, Educational Programs, FDLI

Civil and Criminal Litigation Risks for Online Marketplaces and Digital Advertising
Richard Cleland, Assistant Director, Division of Advertising Practices, FTC
Bridget Richardson, Associate General Counsel, Blue Apron
Patrick Runkle, Trial Attorney, Consumer Protection Branch, US Department of Justice
Jack Wenik, Member of the Firm, Epstein Becker & Green P.C.
Moderated by Jacqueline J. Chan, Partner, Kleinfeld, Kaplan & Becker LLP

The proliferation of online marketplaces and digital advertising has increased the virtualization of the food and dietary supplement industries. While this facilitates consumers’ ability to obtain their favorite products or learn about new ones, it also presents new and unique challenges that can result in civil litigation and criminal charges for manufacturers and retailers. In this session, panelists will explore legal risks for online interactions, including relevant FTC guidelines, social media marketing, potential third-party liability, and direct-to-consumer advertising and sales.

11:00 AM–12:15 PM
Evaluating the State of the “Reasonable Consumer” Standard
Dale Giali, Partner, King & Spalding LLP
Michael R. Reese, Founding Partner, Reese LLP
R. Trent Taylor, Partner, McGuireWoods LLP
Moderated by Jacob E. Gersen, Sidley Austin Professor of Law, Harvard Law School, Affiliated Professor of Government, and Director, Food Law Lab at Harvard Law School

False advertising class action litigation often hinges on the reasonable consumer standard, which in many states requires “a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” This panel will cover recent federal court rulings that applied the reasonable consumer standard, plus additional cases that were allowed to proceed without satisfying this test due to violations of state unfair competition statutes (most notably California’s Unfair Competition Law (UCL)). Panelists will then discuss the likely application of the reasonable consumer standard in pending and future cases.

12:15–1:15 PM
Networking Luncheon with Table Topics

1:15–2:15 PM
Supply Pain: Food Fraud, Ingredient Verification, and Other Issues
August T. Horvath, Partner, Foley Hoag LLP
Gillian L. Wade, Partner, Milstein Jackson Fairchild & Wade, LLP
Moderated by Michael T. Roberts, Executive Director for the Resnick Center for Food Law and Policy, UCLA School of Law

Increasingly complex supply chains and other market pressures present greater challenges for ingredient and product certification and verification. In this session, panelists will examine recent developments in food fraud and economic adulteration, then discuss the broad challenges faced by all stakeholders in resolving these issues.

2:30–3:30 PM
The Complex World of Pet Food and Animal Supplement Regulation
Kim Bousquet, Partner, Thompson Coburn LLP
Kelly Foos, Senior Legal Counsel, Marketing & Innovation, Hill’s Pet Nutrition, Inc.
Kristin M. Kaplan, Of Counsel, Shook Hardy & Bacon LLP
Moderated by Deepti A. Kulkarni, Partner, Covington & Burling LLP

US pet food and treat sales hit a record high in 2021, and animal supplements remain a fast-growing product category. However, the regulatory scheme for these products is complex, particularly for supplements that can straddle the line between pet food and veterinary medicine. This panel will cover FDA’s regulatory framework, gaps in federal authority, and state-level regulation.

3:45–5:00 PM
Unlikely to Harm or Cause for Alarm? Per- and Polyfluoroalkyl Substances (PFAS), Heavy Metals, and the US Approach to Potentially Harmful Substances in Foods and Dietary Supplements
Thomas M. Galligan, Principal Scientist, Food Additives and Supplements, CSPI
Heather Lynch, Managing Health Scientist, Cardno ChemRisk
Will Wagner, Senior Associate, Arnold & Porter LLP
Moderated by Stuart M. Pape, Partner, Polsinelli PC

PFAS and heavy metals have recently garnered heighted attention as harmful substances present in product ingredients and packaging. However, there are uncertainties regarding the extent of harm posed by their current levels in the food supply, and debate on whether existing actionable levels are sufficient and setting appropriate actionable levels where none exist. In this session, panelists will discuss regulatory activity and recent litigation centered on PFAS and heavy metals before turning to a broader discussion on how the U.S. does and should approach these and similar issues, particularly the tension between federal and state-level regulation and education (such as Environmental Protection Agency safety determinations and warnings under California’s Proposition 65).

5:00 PM
Closing Remarks and Adjournment