Class action litigation, the legal landscape for cannabis and the evolving implementation of the Food Safety Modernization Act (FSMA) were trending topics at the 2019 Grocery Manufacturers Association (GMA) Legal Conference. Numerous panels at the conference focused on emerging issues affecting the industry and anticipated trends moving forward, including implications of whole genome sequencing; how courts view the confluence of First Amendment rights and mandated advertising content; and standards-of-identity issues related to non-dairy milks, non-animal meats and cell-grown meats.
Shook Partners Katie Gates Calderon, Phil Goldberg and Jim Muehlberger presented with Courtney Ozer, Assistant General Counsel – Litigation for Unilever United States, and Suzanne Werner, Litigation Counsel – The Coca-Cola Company, on strategies for avoiding and defending against claims involving product testing. The panel discussed (i) assembling a crisis-management team, which should include key company stakeholders, inside counsel, public-relations and governmental-relations personnel; (ii) understanding the pending lawsuit, which involves robustly assessing the testing alleged and then determining whether the defendant should perform its own; and (iii) avoiding future lawsuits by reassessing supply-chain management and developing a strong working relationship between marketing and legal teams.
Opportunities added in 2019 included Legal Briefs sessions, which were twelve 20-minute breakout sessions covering hot topics for consumer packaged-goods companies in the legal and regulatory landscapes. Legal Briefs presenters discussed insurance complications raised by cross-border and global food disputes, best practices for avoiding major pitfalls while developing and introducing innovative products, risks related to environmental claims on labeling, and what to expect in cannabis law following the removal of hemp from the Controlled Substances Act. These presentations, and the GMA conference as a whole, repeatedly emphasized that prudent manufacturers should seek transparency and regulatory compliance both from themselves and anyone involved in their products’ supply chains.
Highlights of the 2019 conference included remarks from U.S. Food and Drug Administration (FDA) Senior Advisor for Policy Sharon Mayl. After speaking on anticipated FSMA developments, she discussed FDA’s position on cannabidiol (CBD) derived from hemp. Mayl indicated that FDA is open to reassessing policies if it can be shown that CBD would meet the requirements for approval as a food additive or dietary supplement. Mayl also mentioned the possibility of congressional action but conceded that any avenues to FDA approval of hemp-derived CBD are unlikely to be expedient.