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Food and Beverage

Overview

Crowell & Moring's Food and Beverage industry group supports clients with the identification and management of legal risks associated with advertising, marketing, distribution, and sales of consumer food and beverage products, both domestically and internationally. Our clients range from Fortune 500 and multinational corporations to emerging companies, and include food and beverage retailers, grocers, manufacturers, and restaurants. We help our clients bring their distinguished products to a competitive market, while ensuring compliance with regulations and mitigating litigation risk.

Our international team brings deep knowledge in the wide range of food and beverage law issues. 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, including:

  • Food and drug regulation in the U.S. and 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

Food Regulation

As authorities such as the FDA 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 and beverage 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 food and beverage clients in class action lawsuits. 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. 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 and consider:

  • The impact to product on store shelves and throughout their distribution chain.
  • The risk to customers and whether communications are needed to protect public health.
  • Their obligations to federal, state, and local regulators, and whether reports must be made.
  • The impact on their brand and the potential litigation risks that might ensue.

Our team brings together highly experienced professionals on supply chain management, food safety regulations, and litigation risk management. Working with clients in real time, we make sure consumers are safe, the brand is protected, and that regulatory and litigation risks are minimized. We have helped clients meet their obligations to consumers and regulators in ways that are contained, controlled, and reasonably scoped based on sound science.

Advertising Substantiation

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. 

International Trade

Food and beverage products are some of the most heavily regulated products in international trade. They are often 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.

Antitrust

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.

Insights

Client Alert | 2 min read | 08.08.23

Another Wave of California Privacy Suits—Deanonymization as “Doxing”

In March 2023, the White House published its National Strategy to Advance Privacy-Preserving Data Sharing and Analytics.  Buried in the report was a quiet, but notable, concern related to the possibility of deanonymizing a consumer due to “insufficient disassociability”.  See Report, pg. 6.  A new wave of class action lawsuits in California—already over three dozen at the time of writing—now seeks to turn a spotlight on these practices, claiming that companies are using “grey market” data to match user patterns with personal identifiable information (PII)....

Representative Matters

Regulatory and Compliance

  • Counseled a large food ingredient supplier with operations in Europe and the United States on compliance with FSMA, including a gap analysis of existing FSMA compliance efforts and determination of facilities covered by the definition of processor.
  • Advised a trade association on comments to the proposed FSMA regulations, unfair trade proceedings against U.S. imports of sugar from Mexico, free trade agreement negotiations with Asia and the EU, and market access disputes in Latin and South America.
  • Helped a client demonstrate to FDA the safety of its produce and secured removal of an import alert the agency imposed after preliminary data suggested possible microbial contamination.
  • Performed legal review of advertising campaigns for a variety of major advertisers across a wide swath of industries, including manufacturers of food and both alcoholic and non-alcoholic beverages.
  • Counseled a client on its response to a finding that an ingredient it distributed to food manufacturers may have been contaminated with prescription drug residues.
  • Advised food and beverage clients to help them obtain duty savings on imports into the U.S., EU and other countries through favorable tariff classification decisions, customs valuation first sale rule and royalty decisions, free trade agreement programs, tariff remission proceedings, duty drawback and establishment of foreign trade zones.  
  • Advised food and beverage clients in customs enforcement proceedings, investigations, seizures, audits and litigation to successfully mitigate penalties and increase compliance.                 
  • Helped client prepare comments to proposed regulations implementing the Foreign Supplier Verification Program and counseled on compliance strategies.
  • Reviewed new preventive controls used in food manufacturing and other efforts to comply with rules imposed by the latest food safety legislation, such as new menu and other nutrition labeling requirements.
  • Provided advice on safety and labeling requirements and other compliance issues for pet food and other pet care products.
  • Assisted a producer of feed in seizing and destroying a competitor's EU stock of feed produced with a prohibited bacterial strain.
  • Trained sales personnel of a global food company on antitrust compliance issues.
  • Provided advice on the scope and substance of FDA regulations covering food contact surfaces and guidance on complying with such requirements including:
  • FDA requirements for food packaging;
  • submission of food contact notifications;
  • the sufficiency of testing products intended as food contact surfaces.
  • Provided advice on whether new products containing specific antimicrobial and antifungal constituents are regulated by FDA as food contact substances, and if so, whether they complied with applicable FDA regulations.
  • Provided advice regarding California's Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) relative to acrylamide in coffee, lead in toothpaste, and other Prop 65-listed chemicals in food products.

Litigation and Investigations

  • Defended a national fast food retailer in nationwide class action alleging consumer fraud in the marketing of foods as trans-fat free.
  • Defended a bread wholesaler in a putative class action alleging that the company’s breads were misleadingly labeled and marketed as all natural and that the labeling and marketing misled consumers about the grain content of the breads.
  • Prepared and defended against NAD challenges in numerous industries, including food and beverages and consumer products.
  • Handled unfair competition claim alleging failure to comply with NY state ban on trans fats in restaurant menu items.
  • Prepared successful responses to inspectional observations (FDA Form 483) following establishment inspections by FDA.
  • Defended a bread wholesaler in a consumer group's lawsuit alleging that labeling and marketing of the company’s wheat breads violated the D.C. Consumer Protection Procedures Act by falsely representing the whole grain content.
  • Represented a Canadian multinational food manufacturer in an EU Member State court litigation relating to a competitor’s misleading advertising claims on the percentage of fat in its French fries.

Recalls

  • Advised client on appropriate regulatory response and recall strategy after discovery that a manufacturing machine failure left plastic shards in raw food product shipped to franchise stores.
  • Helped client develop strategy in response to FDA recall demands following discovery of salmonella in the client’s manufacturing facility. Crowell guided the company through meetings with FDA officials, including with the Director of FDA's Center for Food Safety and Applied Nutrition, to arrive at a reasonable recall plan to ensure consumer safety.
  • Guided a client's market withdrawal of food items distributed to franchise stores after discovery that a mechanical failure during manufacturing may have dispersed foreign objects into the articles of food.
  • Advised client on appropriate regulatory response and recall strategy after discovery of toxins in enzymes made by the client and used in food manufacturing.
  • Advised ingredient manufacturer on how to handle accusations by customer that an ingredient the client made was the source of listeria monocytogenes found in finished product sold to consumers.

Insights

Client Alert | 2 min read | 08.08.23

Another Wave of California Privacy Suits—Deanonymization as “Doxing”

In March 2023, the White House published its National Strategy to Advance Privacy-Preserving Data Sharing and Analytics.  Buried in the report was a quiet, but notable, concern related to the possibility of deanonymizing a consumer due to “insufficient disassociability”.  See Report, pg. 6.  A new wave of class action lawsuits in California—already over three dozen at the time of writing—now seeks to turn a spotlight on these practices, claiming that companies are using “grey market” data to match user patterns with personal identifiable information (PII)....

Professionals

Insights

Client Alert | 2 min read | 08.08.23

Another Wave of California Privacy Suits—Deanonymization as “Doxing”

In March 2023, the White House published its National Strategy to Advance Privacy-Preserving Data Sharing and Analytics.  Buried in the report was a quiet, but notable, concern related to the possibility of deanonymizing a consumer due to “insufficient disassociability”.  See Report, pg. 6.  A new wave of class action lawsuits in California—already over three dozen at the time of writing—now seeks to turn a spotlight on these practices, claiming that companies are using “grey market” data to match user patterns with personal identifiable information (PII)....

Insights

Client Alert | 2 min read | 08.08.23

Another Wave of California Privacy Suits—Deanonymization as “Doxing”

In March 2023, the White House published its National Strategy to Advance Privacy-Preserving Data Sharing and Analytics.  Buried in the report was a quiet, but notable, concern related to the possibility of deanonymizing a consumer due to “insufficient disassociability”.  See Report, pg. 6.  A new wave of class action lawsuits in California—already over three dozen at the time of writing—now seeks to turn a spotlight on these practices, claiming that companies are using “grey market” data to match user patterns with personal identifiable information (PII)....