Wednesday, September 27
Christine M. Simmon, President & CEO, FDLI
Stefanie Jill Fogel, Partner, DLA Piper LLP and Chair, 2023 Food Advertising, Labeling, and Litigation Conference Planning Committee
Douglas W. Stearn, Deputy Director for Regulatory Affairs, Center for Food Safety and Applied Nutrition (CFSAN), US Food and Drug Administration (FDA)
This stage-setting session will cover U.S. Department of Justice federal enforcement actions and areas of focus, state-level regulatory developments, notable court decisions, and litigation filing trends.
August T. Horvath, Partner, Foley Hoag LLP
Matthew J. Lash, Assistant Director, Consumer Protection Branch, U.S. Department of Justice
Claudia M. Vetesi, Partner, Morrison & Foerster LLP
Moderated by Thomas Tobin, Associate, Perkins Coie LLP
11:00–11:20 AM | Networking and Refreshment Break
As part of its efforts to help consumers make healthy dietary choices, FDA has proposed an updated definition of the term “healthy” on food packages and issued a new draft guidance on dietary guidance statements for food labels. Panelists will provide an update on both initiatives, offer perspectives on what the final versions should look like, examine recent cases where implied healthy and “health-halo” claims are being challenged, and predict how new and potentially clearer FDA guidance will impact future litigation.
Veronica Colas, Counsel, Hogan Lovells US LLP
Maia C. Kats, Managing Member, Just Food Law
Claudine Kavanaugh, Director, Office of Nutrition and Food Labeling, CFSAN, FDA
Abby Meyer, Partner, Sheppard Mullin Richter & Hampton LLP
Moderated by Sarah Sunday, Assistant General Counsel for Food Law, Nestlé USA
12:30–1:30 PM | Networking Luncheon
In 2022, the Federal Trade Commission (FTC) updated its Health Products Compliance Guidance for the first time in over 20 years. This discussion will cover the guidance’s updates for health claim substantiation, recent FTC activity in this space, and government and private litigation risks for food and dietary supplement companies when advertising their products online.
Benjamin P. Abel, Associate, Faegre Drinker Biddle & Reath LLP
Jacqueline J. Chan, Assistant General Counsel, Regulatory & Marketing, Unilever
Michael Ostheimer, Attorney, Division of Advertising Practices, Federal Trade Commission
Moderated by Jason W. Gordon, Partner, Reed Smith LLP
Earlier this year, the United States Department of Agriculture (USDA) issued grants of inspection and approved labeling for two manufacturers of cell-cultured chicken, while FDA released its draft guidance for labeling plant-based milks. Panelists will review the joint FDA-USDA regulatory framework for cell-cultured products and outline considerations for the inspection and label-review process, examine FDA’s plant-based milk guidance, and address remaining challenges and concerns for the labeling of these and other alternative proteins.
Jana Caracciolo, Associate, Gray Robinson, P.A.
Kyle A. Diamantas, Of Counsel, Jones Day
Rachel Edelstein, Assistant Administrator, Office of Policy and Program Development, Food Safety and Inspection Service, United States Department of Agriculture
Sarah Sorscher, Director of Regulatory Affairs, Center for Science in the Public Interest
Moderated by Deepti A. Kulkarni, Partner, Covington & Burling LLP
4:00–4:20 PM | Networking and Refreshment Break
Consumers have shown an increased interest in products from companies with environmentally and socially conscience business practices. However, many popular terms such as “sustainable,” “carbon-neutral,” “100% recyclable materials,” and “ethically sourced” lack widely accepted definitions, and their use creates litigation risks. This session will cover trends in ESG claims, certification concerns, challenges facing the broader ESG movement, and recent cases and litigation trends in this space.
Matthew G. Ball, Partner, K&L Gates LLP
Samantha Dietle, Legal Counsel, Food Law and Regulatory, Nestlé USA
Michael R. Reese, Founding Partner, Reese LLP
Moderated by Raqiyyah Pippins, Partner, Arnold & Porter
5:30– 7:00 PM | Conference Reception
Thursday, September 28
FDLI Welcome
Steven Leslie, Acting Director, Educational Programs, FDLI
Panel Discussion: Per- and Polyfluoroalkyl Substances (PFAS) and Heavy Metals: Examining Tensions Between Federal Regulation, State Legislation, and Private Litigation
The environmental presence of PFAS and heavy metals poses a potential health threat for many foods. However, there is unsettled science on safe amounts for human consumption, meaning federal agencies, state governments, and the courts may arrive at different conclusions on appropriate actionable levels. Panelists will review FDA and Environmental Protection Agency (EPA) efforts to understand and reduce the levels of heavy metals and PFAS in the food supply, state legislation aimed at addressing these concerns, and recent litigation where consumers have alleged the presence of these substances amount to adulteration or create a duty to warn consumers.
Dale Giali, Partner, King & Spalding LLP
Sarah Topy, Assistant General Counsel, The Procter & Gamble Company
Melissa S. Weiner, Partner, Pearson Warshaw, LLP
Moderated by Keith A. Matthews, Of Counsel, Wiley Rein LLP
This session will offer a survey of recent Prop 65 regulations, guidances, and litigation involving a range of topics, including acrylamide, lead, titanium dioxide, and federal preemption. Panelists will also discuss the potential implications of the International Agency for Research on Cancer’s “possibly carcinogenic” determination for aspartame and other potential Prop 65 developments.
Howard Hirsch, Partner, Lexington Law Group
Will Wagner, Senior Associate, Arnold & Porter
Moderated by Christopher Van Gundy, Partner, Sheppard Mullin Richter & Hampton LLP
11:20–11:40 AM | Networking and Refreshment Break
As the dietary supplement market has grown, so has scrutiny from regulators, consumer protection groups, and plaintiffs’ attorneys. Panelists will discuss a range of current challenges and concerns in the dietary supplement space, including ingredient verification, labeling accuracy, claim substantiation, recent filings, and potential statutory damages awards in false advertising cases.
Jensen N. Jose, Regulatory Counsel, CSPI
Shawn R. Obi, Partner, Winston & Strawn LLP
Maged Sharaf, Senior Director for Labeling, Cannabis and Claims Consulting Services, EAS Consulting Group
Moderated by Megan Olsen, Senior Vice President and General Counsel, Council for Responsible Nutrition
12:50–1:50 PM | Networking Luncheon with Table Topics
The White House National Strategy on Hunger, Nutrition, and Health calls for a FOP labeling system to help consumers make healthier choices, and FDA is currently conducting research on developing a new FOP labeling scheme. This session will feature presentations on the latest evidence on how FOP labeling can increase consumer understanding of product ingredients, decrease misperceptions, and encourage healthier choices, followed by a discussion on potential legal and practical challenges to implementing FOP labeling regulations.
Frances Fleming-Milici, Director of Marketing Initiatives, Rudd Center for Food Policy and Health, University of Connecticut
Anna H. Grummon, Assistant Professor, Department of Pediatrics, Stanford University School of Medicine
Aviva A. Musicus, Adjunct Assistant Professor, Department of Nutrition, Harvard T.H. Chan School of Public Health
Moderated by Amy E. Hancock, General Counsel and Executive Vice President, Legal and Regulatory Affairs, American Beverages Association
With the growth of online grocery shopping, food and dietary supplement companies are facing a new litigation risk–consumer data-related class action litigation. These cases involve claims such as improper data collection, misuse, or security breaches in violation of the California Privacy Rights Act or state invasion of privacy statutes, and often carry significant potential statutory damages awards. Panelists will provide an overview of data privacy litigation, discuss recent cases, and offer best practices for food and dietary supplement manufacturers and retailers to protect against this growing risk.
David T. Biderman, Partner, Perkins Coie LLP
Bethany G. Lukitsch, Partner, Baker & Hostetler LLP
Gary E. Mason, Partner, Mason LLP
4:00 PM | Closing Remarks and Adjournment
