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The cannabis industry, including marijuana, hemp and cannabidiol (CBD), is complex and rapidly evolving. Shook Partners Mike Barnett, Lindsey Heinz, and Jim Muehlberger lead a discussion about how the legal landscape is changing for this burgeoning area and why it matters to the food and beverage industry. The presentation covers the differences between marijuana and industrial hemp; how the 2018 Farm Bill altered the current federal regulatory landscape; the impact on food, food supplement and consumer product industries; and the different approaches states have taken in the absence of Food and Drug Administration guidance. View the webinar >>

Shook Partner Jim Muehlberger has participated in a Corporate Disputes roundtable on food and beverage litigation. He answers questions on the increase in litigation in the sector and what companies can do to assess their liabilities when facing a lawsuit. “Food and beverage putative class action filings show no signs of letting up,” Muehlberger explains. “In the U.S., the FDA has indicated that it is investigating several issues that could prompt plaintiff’s attorneys to pursue new lawsuits, including the use of animal-associated terms to apply to plant-derived products such as ‘almond milk’ or ‘veggie burger.’” He also suggests that the introduction of cannabidiol into the food and beverage industry—if the agency ultimately permits its use—may trigger a number of lawsuits related to marketing claims and labeling, among other issues. “Outside counsel can help food and beverage manufacturers comply with governmental agency rules and labelling guidelines before litigation is contemplated,” Muehlberger…

Shook Partner Lindsey Heinz and Associate Elizabeth Fessler discuss the regulatory and legal implications of food advertising, especially through social media, in the podcast available below. What types of scientific substantiation do companies need to supply for labeling claims, particularly those related to health and safety? Do the U.S. Food and Drug Administration (FDA) and Federal Trade Commission (FTC) look to websites and social media when reviewing products for regulatory compliance? What should companies know about retweeting or sharing third-party endorsements? Listen to the podcast (6:53) and read the transcript, available below. LINDSEY HEINZ Have your cake and tweet it too—managing social media marketing campaigns related to food and beverage products can be a tricky legal line to tow. ELIZABETH FESSLER Social media continue to be a powerful marketing tool. And as access to technology expands, social media marketing campaigns are increasingly likely to play a significant role in marketing…

Shook Partner Cary Silverman was an invited panelist at The George Mason University Antonin Scalia Law School’s Law and Economics Center’s Congressional Civil Justice Academy program on the legal challenges surrounding food labeling, advertising and marketing. The event, which draws congressional staff, was held on April 26, 2019, in the U.S. House of Representatives Agriculture Committee’s hearing room in Washington, D.C. Silverman discussed the wave of consumer class actions and private attorney general lawsuits targeting food and beverage makers ranging from “natural” claims to slack fill litigation, as explored in his paper "The Food Court: Trends in Food and Beverage Class Action Litigation" and law review article "In Search of the Reasonable Consumer: When Courts Find Food Class Action Litigation Goes Too Far." His suggestions for addressing the subject included federal class action reform, clear labeling regulations backed by preemption and objective decisions by judges as to whether reasonable consumers…

JD Supra 2019 Readers’ Choice Awards selected Shook, Hardy & Bacon as the “Top Firm for Food & Beverage” news. Shook was chosen from a crowded field of more than 50,000 authors whose work was published on the site in 2018. Shook was recognized for the second consecutive year for insights and commentary in the Food and Beverage Litigation Update, achieving the “highest visibility and engagement for their particular expertise” in the practice area. The legal news site’s readers chose ten top authors and one top firm in each of 26 categories. Shook Partner Mark Anstoetter was ranked first among the “Top Authors” in Food & Beverage. According to JD Supra, honorees were selected for their coverage of “topics at the intersection of food, beverages and the law,” including U.S. Food and Drug Administration labeling, risk mitigation, trademark protection and export issues. Anstoetter was also noted in a subsequent article,…

The Nutrition Business Journal spoke to Shook Partner Cary Silverman on the rise of lawsuits stemming from "clean labels" listed on food products. While consumers may want easier-to-read labels, this shortened language may open the door to potential lawsuits. Silverman, who co-authored the 2017 report “The Food Court: Trends in Food and Beverage Class Action Litigation,” for the U.S. Chamber Institute for Legal Reform, says that transparency creates skepticism. “I can only imagine the internal battles within food companies between marketing and legal,” Silverman told NBJ. “I understand why a company would want information printed transparently on the front of the package, but on the other hand, there is a reason lawyers like fine print. When you remove the fine print from a label and go with the basics, it could be a plaintiffs’ lawyer’s dream.” Silverman’s report, which was co-authored with Shook Partner Jim Muehlberger, found that 20 food-marketing class actions…

Shook Partner Cary Silverman has authored an article for the University of Cincinnati Law Review arguing for a consistent application of the "reasonable consumer" standard in food and beverage litigation. Describing frequent litigation targets such as foods labeled as "natural" and packages containing "excessive slack fill," Silverman explains that in some cases, "a plaintiff's alleged understanding of a product’s marketing is simply contrary to nature or reality." For example, he notes, a complaint alleging that Kind's Vanilla Blueberry Clusters were mislabeled as containing "no refined sugars" was dismissed because no reasonable consumer would interpret the label as meaning raw sugar cane, which is "a grass that contains joined stalks resembling bamboo … surrounded by bark." However, Silverman explains, some courts apply the reasonable consumer standard differently, allowing putative class action complaints to pass through the motion-to-dismiss stage, prompting settlement discussions between the parties. "In slack fill litigation, some courts have…

Shook Partners Paul La Scala and Naoki Kaneko, with Associate Emily Weissenberger, will join Western Growers Vice President and General Counsel Jason Resnick for a complimentary webinar on the Safe Drinking Water and Toxic Enforcement Act (Prop. 65). The webinar will cover (i) Prop. 65 warnings at facilities; (ii) product labels on packaging and websites; (iii) special considerations for the produce industry; and (iv) the anatomy of a Prop. 65 case.

Shook, Hardy & Bacon has been named the “Top Firm for Food & Beverage” news in the JD Supra 2018 Readers Choice Awards, chosen by readers from more than 50,000 authors whose work was published on the site in 2017. Madeleine McDonough and Mark Anstoetter were ranked first and second “Top Authors” in Food & Beverage out of 800 authors, and McDonough was ranked second in “Top Authors” in the Class Action category.

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