Crowell & Moring's Food and Beverage Industry Group covers the waterfront on the legal, regulatory, and commercial challenges facing this constantly evolving industry. With the growth in the health and environmentally conscious consumer population, we help our clients bring their distinguished products to a competitive market, while ensuring compliance with regulations and mitigating litigation risk.
Our central focus for clients is the identification and management of legal risks associated with advertising, marketing, distribution, and sales of consumer food and beverage products. Our lawyers and policy professionals help clients with the issues of complex legal and regulatory regimes, both domestically and internationally, applicable to the design and promotion of products and related services as clients develop strategies to grow their businesses. We assist clients in taking innovative and proactive measures to protect their business from the array of challenges before them, from regulatory investigations and consumer or tort litigation to false and unsubstantiated claims by competitors. Clients report that our practice is one of a kind in its holistic, innovative, business-oriented, and end-to-end approach to risk management and mitigation.
To help companies meet these myriad challenges, our team includes lawyers and professionals from our offices across the U.S. as well as in Europe, and brings deep knowledge in the wide range of necessary legal fields this work requires, including:
- Food and drug regulation in the U.S. and European Union (EU)
- Product safety and recalls
- Advertising, marketing, and consumer protection, such as false advertising litigation and defense of government enforcement proceedings
- International trade
- Sourcing, supply chain, and distribution
- Reputation and crisis management
- Defense of consumer class action and products liability litigation
Our clients range from Fortune 500 and multinational corporations to emerging companies, and include food and beverage retailers, grocers, manufacturers, and restaurants. The practice is led by former high-level government officials from the U.S. Food and Drug Administration (FDA), U.S. Consumer Product Safety Commission (CPSC), and the Federal Trade Commission (FTC), as well as recognized prominent litigators in advertising litigation, consumer protection, and international trade. We regularly appear before authorities that regulate food safety, including the FDA, FTC, CPSC, the Environmental Protection Agency (EPA), Customs and Borders Protection (CBP), the Occupational Safety and Health Safety Administration (OSHA), state attorneys general and regulatory agencies, the European Commission, and the national authorities in EU Member States.
The FDA continues to adopt rules implementing its expanded enforcement authorities under the Food Safety and Modernization Act (FSMA), and so now more than ever food companies must be ready to respond to the agency's regulatory demands. Crowell & Moring lawyers have been monitoring closely the changes FSMA has brought to the food regulatory landscape and have been working to prepare clients to meet new regulatory obligations. In Europe, we help clients navigate changes to the labeling regulations and adapt packaging to local requirements. As authorities toughen their stance on the ingredients, manufacturing practices and safety standards used to produce and distribute food, we have helped our clients to navigate these changes, update practices and procedures, respond to agency actions, advise on and influence agency proposals, and forge open and constructive relationships with the agency personnel who are key to their businesses.
Consumer Class Actions and Other Litigation
Crowell & Moring has handled dozens of matters for major food, beverage and personal care product manufacturers, including lawsuits brought under federal and state consumer protection laws, matters brought before the National Advertising Division (NAD), and matters brought by the FTC and the state attorneys general. We also have extensive experience representing clients in industries that are frequently targeted by class action lawsuits, including the food and beverage industry. These matters often are industry attacks seeking to have the courts act as the regulator of products and services. We are experienced in coordinating strategies across the litigation, public relations, government relations, and investor relations arenas.
Our team also consists of highly-seasoned trial attorneys who frequently try cases to verdict, including in the San Francisco Bay Area where the vast majority of food-related consumer class actions are filed. Where settlement is the appropriate outcome, our litigators deliver both experience and innovation in connection with class action settlements, taking into account both legal and business considerations in crafting resolutions that meet our clients' goals.
Our litigation experience helps drive our advice in assisting companies design claims substantiation research that will support our clients' advertising claims, and challenge their competitors' claims. We have particular depth in consumer survey and preference research, and regularly work with the nation's best third-party experts on such issues.
Product Safety and Recalls
When food safety is questioned, food manufacturers must quickly mobilize on numerous fronts. They must:
- Examine their manufacturing processes and supply chain to identify the source of the problem.
- Consider the impact to product on store shelves and throughout their distribution chain.
- Consider the risk to customers and whether communications are needed to protect public health.
- Consider their obligations to federal, state, and local regulators, and whether reports must be made.
- Consider the impact on their brand and the potential litigation risks that might ensue.
Our team provides specific proficiency to each of these tasks. We bring together highly experienced professionals on supply chain management, food safety regulations, and litigation risk management. And we work with clients in real time to make sure consumers are safe, the brand is protected, and that regulatory and litigation risks are minimized. In these and other matters, Crowell & Moring has helped clients meet their obligations to consumers and regulators in ways that are contained, controlled, and reasonably scoped based on sound science.
Food and beverage manufacturers and retailers are often engaged in intense competition for market share and aim to achieve product differentiation and brand recognition. We help our clients understand the risks of certain marketing strategies, not just from government regulators but also from consumer class action litigation. For example, the food and beverage industry faces class action risk based on the use of terms such as "organic" and "natural," in the U.S. and from competitors and consumer interest groups in the EU, even when there has been no apparent injury to a consumer. We have extensive experience assisting clients develop (or attack) claims regarding taste preference.
Global trade in the food and beverage sector has increased significantly over the past few years. This increase will continue and has occurred despite the fact that food and beverage products are some of the most heavily regulated products in international trade. Food and beverage products commonly are subject to high tariffs, tariff rate quotas, excise taxes, import and export licensing requirements, unfair trade actions (antidumping and countervailing duty), market access restrictions and WTO disputes. We have represented numerous food and beverage clients in a broad range of international trade proceedings, helping them to ensure compliance and to navigate the U.S. and EU rules of origin, reduce trade barriers, increase market access and minimize draconian penalties. We have worked before the many administrative, judicial, legislative and international bodies that handle food and beverage trade issues, using a multidisciplinary approach to favorably resolve or clients' problems. The Crowell & Moring international trade team advises clients on not just the 'how to' of today, but, more importantly, the 'what next' for tomorrow — whether it is to identify new trade agreement opportunities or proactively remove barriers to market entry.
Antitrust and competition continue to be key regulatory issues for the food and beverage industry. Manufacturers and retailers alike face significant challenges with respect to their M&A strategies, structure and management of distribution channels, category management, loyalty pricing, price discrimination, exclusive dealing, industry associations and collaboration with competitors. We have worked on behalf of our food industry clients to secure approval for major mergers, shape pricing strategies to minimize price discrimination risk, advise on relations with distributors, dealers and retailers, and to respond to significant U.S. state and federal and European Commission investigations under the antitrust laws.