Keynotes:

Upcoming Priorities of Attorneys General

Former Arizona Attorney General Brnovich will welcome CPG Legal Forum attendees to the Grand Canyon state. Brnovich will discuss his perspectives on consumer protection and public interest priorities, how industry can partner with their state AGs, and applying legal affairs insights whether from private practice or government service.

Leveraging Legal Acumen for Leadership: A Fireside Chat with Eric Holder

Chief legal professionals are often tasked with shaping many aspects within a company, ranging from compliance to culture. Hear perspectives from the 82nd Attorney General and Senior Counsel at Covington & Burling, Eric Holder, on how to leverage legal acumen for leadership. As the nation’s former chief legal officer, Eric will discuss winning strategies for litigation, regulatory, public policy as well as emerging social issues and provide practical insights CPG professionals can take back to their companies.

Expert Perspectives: Making Your Case from the 13 to the 9

Cases being considered by the 13 US Courts of Appeal and US Supreme Court bring along potential implications for advertising and marketing practices and other issues that may shape CPG.

Mark A. Perry, Co-Head of Weil’s Appellate practice and a member of the Firm’s Complex Commercial Litigation practice, will provide his perspective on cases on the docket and what they could potentially mean for CPG. He is a veteran U.S. Supreme Court advocate and legal strategist who focuses on complex business cases in trial and appellate courts around the United States.

The Road to 1 First Street NE

Mike Davis will provide an overview of Supreme Court innerworkings, including selecting candidates, vetting, nominating, and confirming justices to 1 First Street NE. Mike Davis, the former Chief Counsel for Nominations to Senate Judiciary Chairman Chuck Grassley, is the founder and president of the Article III Project. Davis has served in all three branches of the federal government, including for President George W. Bush, the Justice Department, House Speaker Newt Gingrich and current Supreme Court Justice Neil Gorsuch. Davis also led the outside support team for Justice Gorsuch’s successful confirmation to the Supreme Court.

General Sessions:

General sessions are designed to capture the essence of legal issues that affect the whole of the industry with captivating perspectives from company general counsels, legal approaches to ESG, curating acumen and intelligence from litigation and providing perspective from plaintiffs.

Fireside Chat with CPG General Counsels

This panel of new CPG industry general counsels and rising in-house stars will discuss the learning curves they faced in their respective companies. Whether they were already a seasoned in-house attorney, or this was their first exposure to the industry, this group will discuss the unique challenges and opportunities, what keeps them up at night and the next gen CPG legal priorities.

In the Crosshairs: CPG Litigation Review

We may be tired of saying we live in an unprecedented time, but the amount of litigation facing brands in the food and beverage and dietary supplement industry is incredible. From class actions on a range of flavors, ingredients quality and quantity claims and litigation trends from the last year to more novel challenges for food companies on environmental issues, there are a vast array of issues fueling the class action and plaintiff’s’ bar appetites. Don’t miss your seat at the table to hear about trends in filings, active jurisdictions, ingredient and labeling vulnerability, notable rulings and settlements.

A Sustainable Path for CPG Green Claims

Commitment to sustainability and promotion of environmental benefits is a unifying aspect of the CPG industry, though there continues to be shades of gray on appropriate standards. This session will discuss how to approach sustainability claims and litigation, potential updates to the Federal Trade Commission Green Guides, lessons learned from other industries such as textiles and fashion, vetting potential environmental impact and sorting out climate science, public nuisance allegations, preventative measures, best steps with carbon footprints, the SEC climate change disclosure proposed rule and how to leverage the legal department to shoulder reputational challenges.

Keep Your Friends Close, but Plaintiffs’ Counsel Closer

Plaintiff’s attorneys will discuss their approach to the CPG industry, class plaintiffs, common threads, and jurisdictional issues. Our panelists will cover a variety of topics and discuss trends within each of these areas, as well as discuss litigation that is being brought on the class action front and on behalf of organizations. This session will encompass all CPG product sectors and is a can’t miss.

Business Operations Track:

As nearly every business action carries legal implications, CPG lawyers are constantly providing a range of advisory counsel, whether it’s for product innovation, market expansion, managing risk, advising company leadership on governance or ensuring compliance.

Legal Considerations for E-Commerce and the CPG Industry

With ecommerce approaching 15 percent of all retail sales, and increasing adoption by smartphone-purchasing population, there continues to be unparalleled growth potential as well as legal considerations in the CPG space. Our panelists will take a look at the regulatory and legal challenges associated with e-commerce including consumer protection, advertising, navigate accessibility and ADA compliance, trademark issues as well as unauthorized sales, utilizing analytics to measure business strategy, customer reviews, how the metaverse is shaping consumer engagement and more.

CPG Cyber & Privacy Issues Unwrapped

Beyond the great products the industry offers, consumer privacy and company data are the most important tools of the trade. Whether you’re purchasing your product from around the world or around the corner, there are important privacy considerations all CPG legal professionals should be mindful of. Our experts will profile the latest developments in privacy law including the FTC proposed rulemaking, cross linking data, adopting measures to keep pace with the ever-changing data security landscape along with practical considerations for CPG companies.

Above Board: Governance Best Practices for the CPG CLO

As CPG companies continue to navigate challenges from supply chain, CSR and ESG, the General Counsel plays an increasing role to give top notch advisory support for compliance, ethics, privacy and business strategy. This session will explore reporting relationships, raising risk oversight, shareholder voting and control matters, performing due diligence, reporting on internal investigations and navigating company challenges. This session will also discuss proxy season and stakeholder activism.

Nothing Ventured, Nothing Gained: The Role of Private Equity in the CPG Industry

Private equity plays a continually important role investing in and managing the assets of CPG companies of all sizes from start-up to middle market, to household names. Hear perspectives on unique operational and transactional dynamics CPG legal teams should be aware of.

Litigation Track:

CPG products are essential to consumers everyday life which means not every consumer will be happy and many plaintiffs lawyers are given creative ammunition. Our faculty will provide insights on filings and notable rulings, practical perspectives to hone litigation skills that are specific to CPG, navigating international disputes, litigation funding and more. 

Prop 65: The Nation State of California

In this discussion, panelists will address several topics related to Prop 65, including updates on current and past cases, first amendment challenges, short-form warnings, changes at OEHHA, and how Consumer Brands has engaged. The session will also offer reviews of past rulings, such as preemption, an overview of enforcement actions, the emergence of new litigants, and actionable strategies.

Emerging Chemicals of Concern, an Evolving Area of Labeling Litigation Risk

Lawsuits targeting the alleged presence of PFAS, benzene, and heavy metals in food, supplement and personal care products (and the failure to disclose the presence of these alleged contaminants in product labeling) has surged in recent years—placing industry on its heels while regulators try to respond to potential product safety concerns. This session will provide a litigation landscape related to various chemicals of concern, explore how brands can prevail on motions to dismiss, and forecast potential regulatory developments in this area.

Legs to Stand On: Highlight Reel of Standing Issues in CPG Litigation

Our experts present a detailed overview of recent litigation highlighting consumer and NGO standing issues. Recent cases in the food and personal care space are profiled, states with private right of action, preemption, how the battle of Viking River Cruises v. Moriana will shape litigation in the CPG space.

Survey Says, Expert Needed

While litigation is as much a battle of wits, law and facts, consumer perception research and experts to sort through findings plays a critical role in making your case. This discussion will cover the latest learnings from key federal and state courts, design process and structuring survey questions to avoid bias and strategies for overcoming Daubert challenges with insights applicable regardless of product sector.

Regulatory & Legislation Track:

Given that CPG products are regulated by a variety of agencies, it’s essential to be up to speed to ensure compliance ensure that company can operate with a measure of regulatory certainty. From recalls, ESG, forthcoming legislation, our faculty will approach this track with comprehensive insights.

Antitrust in the CPG Industry

Domestic and foreign antitrust issues have been top-of-mind for regulators who have been increasingly watchful of transactions amid consolidation in an increasingly complex and integrated supply chain. This session will explore enforcement trends; navigating pricing issues; mitigation of risk with relationships and distribution systems; and how the evolving digital landscape of the supply chain presents competition challenges and opportunities for CPG companies.

Federal Trade Commission: Competition and Consumer Protection Issues for the CPG Industry

While one of the smaller agencies in Washington, the FTC oversees a crucial insertion of business interests and consumer protection issues shared across the CPG industry. Our panel, which includes former FTC officials will discuss recent happenings at the agencies covering investigations, recent DOJ/FTC guidelines, mergers and marketing practices and how FTC policies will shape daily legal and regulatory considerations for the CPG industry.

Toxicants, Chemicals and Law, Oh My

Chemicals may compose the makeup of everything and present innovative potential for CPG products and packaging; as well as the potential risk for CPG companies and their legal departments. This session will explore the legal and regulatory scrutiny of PFAS, benzenes, phthalates and other headline making chemicals of the last year, detection strategies, site remediation, along with analysis of upcoming legislation and regulatory activity on these substances.

Major Questions on Congressional and Regulatory Agencies – the world after EPA v. West Virginia

While the Supreme Court’s decision in EPA v. West Virginia is cited as a climate change decision it also upends decades of administrative law interpretation and Congressional deference. The case noting that “administrative agencies must be able to point to ‘clear congressional authorization’ when they claim the power to make decisions of vast ‘economic and political significance” many regs are vulnerable. This session will explore regulations where clear delegation may spell legal challenges including at the FDA, USDA, OSHA and beyond.

Roundtable Sessions: Ask the Experts 

On Friday, February 24, roundtable sessions provide attendees expert perspectives on nuanced legal affairs topics. Identified based on member discussions and tracking of legal affairs issues relevant to the CPG industry, the roundtables deliver actionable learnings and peer to peer exchange.  

Advertising Disputes involving FDA Components – Defense Strategies for Notice Letters, Class Actions, FTC & NAD Challenges

Presenting Sponsor: Amin Talati Wasserman

Presenters: William Cole, Partner, Amin Talati Wasserman, and Lauren Aronson, Partner, Amin Talati Wasserman

Presenters will discuss legal challenges focused on the advertising of food, beverage, dietary supplement and cosmetic products. Discussion will include identifying and mitigating risk as well as best practices and strategies when facing litigation or the threat thereof.

Beware of Dog: Consumer Watchdog Response Strategies for CPG Companies

Presenting Sponsor: K&L Gates

Presenter: Caitlin Blanche, Partner, K&L Gates

This roundtable would discuss issues relating to various self-appointed consumer watchdogs. The roundtable would focus on litigation arising out of work performed by consumer watchdogs, and potential ways to defend against it.

False Advertising and Lanham Act Litigation Round Up

Presenting Sponsor: Patterson Belknap

Presenters: Steve Zalesin, Partner, Patterson Belknap, and Jane Metcalf, Partner, Patterson Belknap

This roundtable will provide a from-the-trenches look at the hottest trends in false advertising litigation, including both competitor suits under the Lanham Act and consumer fraud claims under state law. We’ll explore the latest theories of liability that plaintiffs are pushing, and the defenses that have prevailed in court (and those that have not). Finally, we’ll discuss preventive measures that businesses can take to avoid litigation in the first place.

FDA and 2023

Presenting Sponsor: Covington & Burling

Presenters: Jessica O’Connell, Partner, Covington & Burling, and Miriam Guggenheim, Partner, Covington & Burling

This session provides an overview of FDA’s legal interconnectivity with the CPG industry including modernization efforts, progress on crucial regulatory terms such as “healthy,” inspection and audit readiness, the traceability rule, front of pack labeling, allergen warnings, labeling flexibility, industry advisory considerations as well as how the operations dynamics at the agency are influencing legal affairs across all product sectors.

Litigation Finance: How Companies Can Tap the Value of Their Legal Claims

Presenting Sponsor: Burford

Presenters: Kelly Daley, Managing Director, Burford, and Gabriela Bersuder, Vice President, Burford

Litigation finance is part of a holistic approach to capital and a crucial resource for corporate legal departments looking to protect their bottom lines. Large-scale food manufacturers and distributors proactively turn to litigation to safeguard their brands, generate value and smooth out cash flow, pursue meritorious claims, and recover damages that would otherwise go uncollected. Join Burford Capital’s roundtable to learn about the nuts and bolts of litigation finance, opt-out litigation and more.

Menu or Chopping Block: Foods and Substances with Increased Scrutiny for 2023

Presenting Sponsor: Hogan Lovells

Presenter: Martin Hahn, Partner, Hogan Lovells

With IARC and other authorities revaluating Aspartame, and other non-nutritive sweeteners there is additional interest on what other CPG additives may be scrutinized in the year ahead. What’s on the horizon for ingredients and packaging and how can you prepare.

Novel, Specialty Foods and Plant-Based Legal Exposure

Presenting Sponsor: Morrison and Foerster

Presenter: Claudia Vetesi, Partner, Morrison and Foerster

CPG brands continue to pursue innovations in food sources and tremendous growth in the plant-based space and new alternatives to traditional food inputs. This means more opportunities to reach consumers but also means more vetting of sourcing and processing for food safety issues, labeling considerations, marketing and advertising issues, with a patchwork of state and federal frameworks.

PFAS: What are they? Where are they? And what’s next?

Presenting Sponsor: Sidley Austin

Presenters: Lisa Gilford, Partner, Sidley Austin, and Amy Lally, Partner, Sidley Austin

Perfluoroalkyl and polyfluoroalkyl substances are a group of synthetic chemicals that have been commonly used since the 1940s. They can be found in cosmetics, food packaging, personal care products, apparel, food and more. PFAS are on California’s Proposition 65 list – what isn’t? But California also has banned PFAS in textiles, cosmetics, and food packaging. We’ll discuss all this and how other states are getting in on the act too.

What’s Cooler than COOL? Country of Origin Labeling Insights

Presenting Sponsor: Perkins Coie

Presenters: Jasmine Wetherell, Counsel, Perkins Coie, and Kristine Kruger, Senior Counsel, Perkins Coie

Whether the product is made in the USA, around the corner or around the world, country of origin claims plays an important role in the consumer’s consideration of a product. Learn about substantiation strategies and how to structure your claims especially with the variability of inputs across the supply chain.

Pet Food Litigation

Presenting Sponsor: King & Spalding

Presenters: Keri Borders, Partner, King & Spalding, Dale Giali, Partner, Amin Talati Wasserman, and Rebecca Johns, Senior Associate, King & Spalding

As appetites for litigation continue to grow for plaintiffs and class action attorneys, many have used similar strategies for actions involving pets including country of origin, standards of identity, to “natural” or “real” claims and novel terms like “biologically appropriate.” Experts will provide analysis of recent research, litigation, notable settlements, pet food and supplement labeling dynamics from the FFDCA, state labeling requirements and the Association of American Feed Control Officials.

Labeling Litigation in the ESG Era

Presenting Sponsor: Weil

Presenter: Arianna Scavetti, Partner, Complex Commercial Litigation, Weil, Gotshal & Manges LLP

CPG companies are eager to share their ESG efforts and initiatives with consumers, but plaintiffs are on the lookout for potentially misleading claims.  Learn how courts are assessing sustainability marketing claims and label statements, and how word choice can make all the difference in mitigating litigation risk.

FDA’s Proposed Update to “Healthy” Claim on Food and Supplement Labeling

Presenting Sponsor: Alston & Bird

Presenters: Sam Jockel, Senior Associate, Alston & Bird, and Angela Spivey, Partner, Alston & Bird

This roundtable brings both a regulatory and litigation perspective in discussing the implications FDA’s move to update its criteria for the “healthy” nutrient content claim will have on industry and how food and supplement companies can best insulate themselves from related enforcement and litigation risk.

New Chemicals and Packaging: Vetting Risk and Regulatory Pathways

Presenting Sponsor: McGuireWoods

Presenter: Trent Taylor, Partner, McGuireWoods

An emerging market of packaging ingredients presents new opportunities for CPG. From new polymers to performance additives, hear perspectives, recent research and how legal can work with scientific and technical affairs experts to evaluate new technologies while ensuring compliance with FDA’s Food Contact Notification (FCN) regulations and EPA’s New Chemicals Program (NCP) requirements.

State Laws Forcing the Overhaul of CPG Packaging:  Why the Recycling System is Now Your Problem

Presenting Sponsor: Arnold & Porter

Presenters: Trent Norris, Partner, Arnold & Porter, and Will Wagner, Senior Associate, Arnold & Porter

Four states have enacted Extended Producer Responsibility laws requiring CPG companies to form collectives to address recycling of packaging.  The California law includes requirements for source reduction and other packaging revisions that will transform consumer experiences, presenting brands with both threats and opportunities.  This roundtable explains the history, structure, and goals of these laws and begins to predict their wide-ranging impacts on the CPG industry.