FREE ABA Roundtable this Thursday

Our distinguished alumnus, founder and former fearless leader, Ken Odza, has sent out an invitation to a FREE ABA Roundtable this coming Thursday, December 12. 

The topic is criminal prosecutions of food companies and their officers. 

Contemplaying how one might become the subject of a prosecution may not exactly something that will fill you with comfort and joy this holiday season, but the topic is obviously both timely and important.

You can sign up HERE

Did I mention it is free?

Good luck, Ken (and Watch this Space)!

When Ken called me to tell me he was taking his new job at Kellogg's, I immediately thought of this cartoon.  Growing up outside Detroit, a highlight of every summer was a trip to Battle Creek, where they let you tour the factory, and at the end would give you samples of the latest Kellogg's cereal.  I can guaranty you I ate Cocoa Krispies and Froot Loops before you did.  The Cocoa Krispies were served on vanilla ice cream, too, as I recall.  That's still good.

When Ken first came to Stoel Rives, he was the second lawyer in our office admitted in Alaska, and unlike the first (me) he had actually practiced there.  We first spent time together discussing Alaska projects, but it was our mutual shared love of the Seattle Mariners that was the bedrock of our longstanding friendship.  Kellogg's is lucky to have him, even though he's promised that he will not, and his children will not, change their Mariner loyalty.  And he's fortunate to be working at a company associated with the kind of joy shown in that old Doonesbury cartoon.  Battle Creek makes one think of cereal and box tops traded in for toys, and cereal and box tops make one think of Kellogg's (even though Post is located there, too).  It's a great opportunity for Ken to work on food safety inside at such an iconic company, and we wish him well.  Plus we expect to hear from him--and even have him blog right here. 

While Ken has obviously been a gigantic part of our food liability efforts here at Stoel, he leaves behind both a legacy of people he has trained and worked with, and a culture adapted to the legal needs of the food industry.  Watch this space in future weeks as we introduce you to some of the great people who stand ready to serve you!

Learn How to Prepare for an FDA Inspection

Next Wednesday at the ACI Food Regulatory Summit in Chicago I'll be presenting a talk entitled "Curtailing Downstream Liability Arising Out of On-Site Inspections: How to Prepare and What to Do Should Government Come Knocking." My slide-deck can be linked here.

Topics that I plan to cover include:

  • FDA's plan to increase frequency of inspections and how it plans to do it
  • How to be prepared for FDA's greatly expanded records access authority
  • How to avoid new fees that will be imposed by FDA
  • Developing an appropriate strategy to deal with FDA
  • Preparing a privileged FDA inspection plan and training

More information about the ACI conference and registration can be found here.

More on FSMA and Food Safety Risk Avoidance

Thank you to Parker Smith & Feek for inviting me to speak to about FSMA and how it’s changing the status quo. My slide-deck can be viewed here.

Following my talk, Marty Bask from Parker Smith & Feek led a very interesting discussion about the pros and cons of product recall and contamination coverage. A link to our recent discussion on this blog on what to ask when purchasing this kind of coverage is here.

Looking for Information and Presentations on FSMA, Recalls and The RFR? Look No Further.

I’ll be speaking at several events over the next two months on the Food Safety Modernization Act (FSMA) and how this comprehensive and far reaching legislation affects the status quo for food companies. Two of these events are free, and all promise to address relevant and critical issues for those involved in the food industry.

a. May 24 at Parker Smith Feek's offices in Bellevue for a discussion of the new FSMA, the Reportable Food Registry and how to survive a food product recall (event was rescheduled from March 22). Registration is free and coming soon. Contact me if you’re interested and I’ll get a spot reserved.

b. April 29 webinar sponsored by AON on FSMA. Link to the free registration is here.

c. May 12-14 Northwest Food Processors Association’s Executive Business Retreat in Coeur d'Alene, Idaho.

d. June 15-16 ACI Food Safety Regulatory Compliance Summit in Chicago. I'll be speaking specifically on "Curtailing Downstream Liability Arising Out of On-Site Inspections: How to Prepare and What to Do Should the Government Come Knocking." If you register by April 15, I can arrange for a discount. Just let me know.

If you can't make these events or would like a customized in-house presentation on FSMA, the Reportable Food Registry, recalls or other food liability topics, please let me know. Also, stay tuned for new blog entries addressing such topics as the Reportable Food Registry (RFR), restaurant menu labeling, and strategies to defeat food marketing/labeling putative class claims.

"Recall: A Financial Death Sentence?" An Upcoming Free Seminar in Bellevue, WA

If you're in the Seattle area March 22, please join me at Parker, Smith & Feek's offices in Bellevue for a discussion of the new Food Safety Modernization Act, the Reportable Food Registry, and how to survive a food product recall. Here is the full announcement of the event, including a link to registration (no charge). Hope to see you there.


How the Food Safety Modernization Act Changes the Status Quo

Yesterday (while taking a break from the Sustainable Food Summit in San Francisco), I traveled to Modesto, California to speak to the Manufacturer's Council of the Central Valley. I spoke about the new Food Safety Modernization Act (FSMA).

The focus of my talk was how the FSMA changes the status quo for food businesses. And when I mean changes the status quo, I mean not only what a food company needs to do to comply with the FSMA, but also how the FSMA is likely to affect exposure from recalls and product liability. I also discussed in some detail the dilemmas faced by food businesses and the FDA by the Reportable Food Registry (RFR) and its fallout. Here is a link to my slide deck.

I'm willing to tailor this talk to your company or trade association; just let me know.

Please also consider attending the ABA's Food and Supplements CLE at Coke World Headquarters in Atlanta on February 17. I'll be moderating with Ricardo Carvajal a panel of experts on the FSMA including Robert Brackett (formerly head of CFSAN), Art Liang from CDC, Miriam Guggenheim and Fred Degnan.

At the upcoming GMA food litigation conference in Scottsdale, Arizona, I'll be speaking with my law partner Lee Smith about specific strategies and action steps to take to reduce the increased risks from FDA compliance, and recalls and product liability exposures created by the FSMA and the RFR. We'll also touch on strategies to deal with some current trends in marketing and labeling putative class claims.

What Happens if Food Safety Bill Becomes Law (or Doesn't)?

We're nearly down to the wire on whether the 111th Congress will send S.510, the food safety bill, to the President for signature into law. I'm told it could happen by the weekend.

No matter what happens in Congress, food law is changing and changing faster than it ever has.  The ABA Food Supplements Subcommittee and Products Liability Committee of the Section of Litigation is organizing a day-long CLE February 17 at Coke world headquarters in Atlanta. I'll be co-moderating a panel titled, "What’s New? The Impact of Federal Statutory and Regulatory Reforms on the Food Industry and in Upcoming Litigation."  If you want to know what will happen at the FDA (and other agencies) when food safety legislation passes (or doesn’t), you should be at this CLE. 

Aside from statutory and regulatory reform, other panel discussions will discuss consumer class actions against food companies, the evolving science of food safety, labeling of biologic active foods, and predictions from top in-house counsel.

For those in the industry and serving the industry the conference is a great value (registration as low as $120). Register here. Hope to see you there.

Litigation Strategies for Responding to Significant Consumer Threats

I've been invited to speak this Friday at the University of Oregon School of Law's symposium entitled "Cultivating Our Future: New Landscapes in Food and Agricultural Law and Policy" as a part of the "Food for Thought - Strategies for Advocacy" panel.

I'll outline a series of tools food lawyers can and should use to assist their clients in responding to significant consumer claims. I'll explain:

1. How a client can determine whether a claim has merit,

2. What should be done the moment any significant claim is received,

3. The importance of determining a trial strategy at the earliest possible moment, and

4. The three types of consumer claims seen most often and how to respond to each.

An advance copy of my slide-deck can be found here.


Thursday, February 17, 2011 - Hosted by The Coca-Cola Company.

Please save the date for this first annual one-day CLE workshop sponsored by ABA’s Food and Supplements subcommittee that will include panels on the impact of federal statutory and regulatory reform on the food industry, state consumer laws and consumer class actions related to food packaging, labeling, and marketing, the evolving science of food safety and technology, ethical considerations in the labeling of bioactive foods, and in-house counsel's top predictions for the future of food regulation and litigation. Leslie M. Turner, General Counsel for Coca-Cola North America, will speak on "Protecting the Brand in the Food Industry" at our networking luncheon and a networking reception will follow the workshop.

Ricardo Carvajal from Hyman Phelps & McNamara and I will be moderating the panel on the impact of federal statutory and regulatory reform on the food industry.

More information and a full program agenda to come. Stay tuned.

ACI Food-Borne Illness Conference in Chicago October 27 - 28, 2010

American Conference Institute (“ACI”) will hold its 4th National Conference on Food-Borne Illness Claims in Chicago, October 27 to 28. Highlights of this year's conference will include:

• Appearances by a number of current and former high-level regulators such as Dr. Arthur Liang from CDC, Dr. David Goldman from USDA, Dr. David Acheson formerly of FDA, Dr. Bob Brackett formerly of CFSAN, Jack Guzewich from FDA, Dr. Bill Keene from Oregon Public Health Division and Benjamin Miller from Minnesota Department of Agriculture

• Mock witness examination of a testifying epidemiologist

• Insights from of the nation's top in-house and outside food-borne illness counsel

The complete conference brochure can be linked here.

Unfortunately, my schedule won't allow me to join the conference this year (I've spoken at the first three ACI national conferences on food-borne illness). But I can arrange for a conference discount. Just give me a call (206-386-7595) or send me an email.

Product Liability - Protect Yourself and Your Business

This is the title of a presentation I'll be giving at the American Cheese Society's (ACS) annual meeting in Seattle. I'll be speaking along with Marc Baker and Jill Perucca from the Elliott, Powell, Baden & Baker insurance agency at 3:30 p.m. on August 27. The slide deck I intend to use can be found here.

Michael Pollan and Laurie Demeritt keynote the ACS event that unites the nation's cheese makers in the Emerald City for four days (August 25-28).

Equally as compelling as the keynotes (and our presentation on product liability avoidance) will be presentations by other Stoel Rives lawyers:

Anne Glazer on Trademarks: The Legal Perspective on the Care and Feeding of Your Brand (1:30 p.m. on August 27); and

Peter Serrurier and Ryan Steen on Water, Water, Waste Water Everywhere (10 a.m. on August 27)

If you are at the ACS conference and can pull yourself away from the concurrent presentations on various cheese making topics, stop by and meet  the best food business lawyers in the Pacific Northwest.

Introducing The Alcoholic Beverages Law Blog

By Guest Blogger Stephanie Meier

Stoel Rives’ Food, Beverage and Hospitality Group have launched a new blog focused on the alcoholic beverage industry. 

The Alcoholic Beverages Law Blog provides wineries, breweries, distilleries, cideries, distributors and importers with articles and information across a broad spectrum of state and federal alcohol beverage law. The authors work on alcohol beverage related projects from our bases in California, Oregon and Washington, throughout the Western United States and beyond. The blog lets them share with you their passion for and experience with key legal, business and regulatory issues, and provides a forum for industry feedback, questions and discussion.

Dr. Temple Grandin in Seattle, June 18 for Food Alliance Event

Register now for the Friday, June 18 Food Alliance event at the Museum of History and Industry (MOHAI) in Seattle with Dr. Temple Grandin. This is a unique opportunity to meet Dr. Grandin and leaders in sustainable food and animal welfare. The event benefits Food Alliance, where I serve on the board. It’s the first Food Alliance event in Seattle.

By way of background, Dr. Grandin was recently named one of the most influential people of 2010 by Time magazine. She has authored more than 400 articles on animal welfare, livestock handling and facility design. Her books, Animals in Translation and Animals Make Us Human, were both on the New York Times best seller list. To learn more about Dr. Grandin and her work, click here.

This event includes:

• Lecture and book signing by Dr. Temple Grandin

• Hors d'oeuvres reception featuring local Food Alliance Certified ingredients

• Panel presentation with farmers, ranchers and food businesses committed to greater sustainability in animal agriculture and the food system

• Special showing of the HBO film, Temple Grandin, starring Claire Danes, David Strathairn and Catherine O'Hara

Proceeds from this event will help ensure continual improvement of Food Alliance certification standards for healthy and humane treatment of livestock.

Consumer Fraud Class Claims Presentation at GMA

In just a couple of weeks (Feb. 23-25), I’ll be in Austin for the GMA Food Claims & Litigation Conference. Let me know if you plan to attend. I’ll be presenting with Scott Rickman from Del Monte Foods on consumer fraud class claims arising from food product labeling and marketing. Anyone in the business of selling branded food products should be tracking the trends in consumer fraud class claims. Thanks to the erosion of preemption defenses and increased FDA enforcement action, we’re see many more of these claims, and more result in protracted litigation.

If you’re interested in a preview of the consumer fraud issues that we’ll cover, look at the related posts here. If you can’t be in Austin, let me know and I’ll be happy to share the PowerPoint slide deck and supplemental materials.

Also, if there’s something related to consumer fraud claims or food liability that we haven’t covered in the blog or that you’d like to see more coverage on, please let me know. We at would love to hear your feedback. Thanks!

Take-Aways from November 17 Webinar: Sustainable Foods Increase Litigation Risks: Developing Strategies to Minimize Exposure

On November 17, we held our final webinar in a three-part series on bringing sustainable food products to market. Take-aways from the third webinar include:

• Be aware that "natural" is a hot button when advertising and labeling sustainable food products.

• "Sustainable" is not addressed in FTC Green Guides so it is imperative to be specific with your claim and/or use third-party certification.

• Truitt Brothers packaging/labels depict the source of their ingredients.

• Food-borne illness issues affect all food producers. Large producers have made significant investments in prevention in recent years; small producers of sustainable products without capital to improve farming or manufacturing practices are at a competitive disadvantage and possibly more susceptible to legal exposure from food borne illness claims.

• Food sellers should identify a crisis management team, review supplier agreements and understand insurance coverage to mitigate risk.

• Food sellers should understand that product recall coverage is excluded on most Commercial General Liability coverage forms.

Thanks again to our presenters and attendees. The recorded webcast was archived and is accessible here. Click here to access a PDF copy of the presentation slides.

Stay tuned for a possible new webinar series on food traceability. We're tracking the latest regulatory and legislative developments.

Tomorrow's (11/17) Webinar on Mitigating the Legal Risks of Sustainable Food Products

Please join me, Steve Marinkovich from Propel Insurance, my colleague at Stoel Rives, Anne Glazer, and Peter Truitt, CEO of Truitt Bros., Inc. tomorrow, November 17, at 9 am PST, noon EST, (live Twitter feed at #sustainlaw) for the last webinar in our 3-part series on Bringing Sustainable Food Products To MarketRegister here.

We will discuss (and respond to your questions):

• Preventing and Dealing with Consumer Fraud, Unfair Trade and False Advertising Claims from Consumers and Competitors

• Real-Life Businesses Approaches to Sustainability, Product Labeling and Marketing

• Coping with Increased Risks of Food-Borne Illness from Local or Small Farm Products

• Insurance Coverage You Need, Think You May Have but Don’t Have or Think You May Want but Shouldn’t Get

Take-Aways from November 3 Webinar: Making Good Marketing Claims: Product Labeling Pitfalls, Third-Party Certification and "Green Washing"

Tuesday, November 3, we held our second webinar in a three-part series on bringing sustainable food products to market. Thanks again to our presenters and attendees. The recorded webcast was archived and is accessible at this link. Click here to access a PDF copy of the presentation slides.

Take-aways from the second webinar include:

• With the exception of the FDA’s policy on “natural” claims, it has been silent on “green claims.”

• “Natural” could be hottest claim on the market but is becoming controversial. Food companies should continually monitor the marketplace to see which claims are drawing challenges.

• Food companies should pay attention to consumers union findings regarding eco-label credibility.

• While third-party certification may not help every food business, certification is a tool that supports your brand and your marketing/sales strategy.

• Retail leaders in sustainability, such as Burgerville, aspire for continuity of sustainability in each link in its supply chain.

• To understand the FTC green guidelines companies need to appreciate three key points: substantiation, specificity and qualification.

• To avoid “green washing” issues, food companies need to understand the complex matrix of federal, state, local and foreign statutes, regulations and guidelines governing “green” advertising.

I hope you can join me, Steve Marinkovich from Propel Insurance, my colleague at Stoel Rives, Anne Glazer, and Peter Truitt from Truitt Bros., Inc. on November 17, at 9 am PST, noon EST, (live Twitter feed at #sustainlaw) for the last webinar in the series as we discuss the following:

• Preventing and Dealing with Consumer Fraud, Unfair Trade and False Advertising Claims from Consumers and Competitors

• Real-Life Businesses Approaches to Sustainability, Product Labeling and Marketing

• Coping with Increased Risks of Food-Borne Illness from Local or Small Farm Products

• Insurance Coverage You Need, Think You May Have but Don’t Have or Think You May Want but Shouldn’t Get

Continue Reading...

Learn About Who Is Setting Sustainability Standards and How to Make Good Sustainability Claims: Register for the 11/3 Sustainable Foods Webinar

If you haven’t already, register here for the second in a three-part webinar series on environmentally friendly sustainable food products, to be held at 9 am PT, Tuesday, November 3. This installment of the series will focus on sustainability standards, third-party certification and avoidance of “green-washing.”

The webinar will feature:

The webinar is interactive, and those listening live will be able to submit questions. We will strive to answer all questions either during the broadcast or off-line directly with listeners.

If you missed the first installment, you can read about the take-aways and replay the webinar on demand here. The slide deck can be downloaded here.

Environmentally Sustainable Foods: Dispelling Fear and Understanding That Sustainability Must Be Good for Business

Stoel Rives is proud to sponsor an upcoming webinar series on legal and business aspects of bringing sustainable food products to market. Industry representatives will talk among other things about what sustainable food products are, help dispel the fears of traditional food companies, discuss strategies for minimizing business and litigation risks, and underscore the importance of sustainable foods as a profit-making enterprise.


The first session, October 20, will discuss what an environmentally sustainable food product is, how a company may need to rethink research and development and supply chain issues, and financing. Participants include Steve Rowe, Sr. V.P. and General Counsel from Darigold, Inc. and its parent Northwest Dairy Association, food supply chain consultant Monica Gelinas from Karp Resources, and business lawyers Joel Dahlgren and Duff Bryant from Stoel Rives.

The second session, November 3, will look at what the FDA and USDA may do to define sustainability, third-party certification issues and green washing. Participants include Alison Dennis, Director of Supply Chain from Burgerville, Roberta Anderson from third party certifier Food Alliance, FDA lawyer Ricardo Carvajal from Hyman Phelps and trademark lawyer Jere Webb from Stoel Rives.

The third session, November 17, will look at increased risks presented by sustainable food products and strategies to mitigate those risks. This panel will include Peter Truitt, CEO of Truitt Brothers; Steve Marinovich, insurance broker at Propel Insurance; advertising lawyer Anne Glazer from Stoel Rives and me.

Each session will be 60 minutes and feature an interactive, "rapid fire" roundtable format. The panels will also respond in real time to questions submitted by listeners. Registration is free. Contact me if you would like further information.

Lecture at the University of Minnesota

Off to Minneapolis this week for a lecture at the University of Minnesota’s Department of Food Science. I’ll be talking to professor Francisco Diez’s Food: Safety, Risks and Technology class. My lecture is titled “Consumers vs. Food Companies: Intersection of the Court System and Food Science.”

I plan a wide-ranging talk that touches on:

  1. The relationship and interaction between the tort system and food regulation;
  2. Basic principles of products liability law as it affects food;
  3. Three different types of food products claimants and how we respond to each;
  4. Why consumer claims matter to food companies;
  5. The importance of investigating agencies in determining the outcome of claims;
  6. The relationship between food-borne illness, home food preparation, organic food and locavores; and
  7. How lawyers use expert witnesses.

I’ll post the slides after the lecture.

2010 Food Safety Education Conference Announced

The U.S. Department of Agriculture’s Food Safety and Inspection Service has announced the 2010 Food Safety Education Conference. The conference will be held in Atlanta from March 23 through 26, 2010. Although the agenda is still a work in progress, you can expect sessions on foodborne illnesses, outreach to the medical community, food safety education initiatives, social marketing, and emerging industry trends and technologies.

The conference is accepting abstracts on food safety-related topics through August 16, 2009. More information on the conference and the abstract submission process is available through the links on the widget below.

ACI Announces 3rd National Forum on Food-Borne Illness Litigation

The American Conference Institute announced this week its latest food litigation conference. Here’s the conference brochure. The conference will take place in Chicago on October 26-27 at the Sutton Place Hotel.

Plaintiffs’ lawyer Bill Marler and defense lawyer Al Maxwell are co-chairing the conference. This year promises a greater variety of presentations by in-house food personnel, government regulators, and others. As in past years, I expect a stimulating exchange of information and vigorous debate about competing views of food liability issues. Feel free to email me or comment if you are attending or want more information.

FDA Commissioner Nominee Faces Confirmation Hearing

Dr. Margaret Hamburg, President Barack Obama’s nominee to oversee the Food and Drug Administration, is appearing before a U.S. Senate committee this afternoon regarding her nomination. The confirmation hearing before the Senate Health, Education, Labor and Pensions Committee began at 2:00 p.m. ET. Streaming video is available here.

The Associated Press is reporting that, if confirmed, one of Hamburg’s first tasks will be overseeing development of a vaccine for the H1N1 influenza virus. In Hamburg’s opening remarks to the Senate committee that were made available to reporters earlier today, she also noted that food safety will be among her top priorities. “Important steps must be taken to better protect the nation’s food supply from farm to form,” Hamburg said.

Nebraska Governor's Conference on E. Coli

The third annual Nebraska Governor’s Conference on Food Safety Issues related to E. coli is May 5-7 in Lincoln, Nebraska.

Together with Bill Marler, I have been invited to speak to agricultural stakeholders about legal issues and ramifications of Shiga toxin-producing E. coli outbreaks. In the past, the emphasis for this conference has ranged from basic science to applied science, and this year's conference will emphasize issues ranging from animal and plant management strategies to regulatory issues. Given the inevitable changes that will be coming in food safety regulation under the Obama administration, this should be a lively conference.

Back to School

In the next couple of weeks, I have the unique opportunity to travel back to Cornell University, my law school alma mater, to spend time getting acquainted with its world renowned food science program.

While in "gorges" Ithaca, I plan to audit courses such as “Food Safety Assurance” and “Current Topics in Food Science & Technology.” I also plan to speak to graduate students in the program about “life in the trenches.”  This should be interesting as the intersection of science and law is never boring.

I expect to have plenty to write about upon my return. In the meantime, if you are shopping for some of the best maple syrup or dairy products available, be sure to visit the Cornell Dairy Store where you can order online to stimulate the upstate New York economy.

Upcoming Hot Topics in Food Law Teleconfernce

UPDATE - This panel will address emerging issues related to the recalls and investigations related to the Peanut Corporation of America. The panel includes persons intimately involved with these issues. Anybody with an interest in the peanut recall should register and tune-in.

The American Bar Association is presenting its second Hot Topics in Food Law teleconference on February 10, 2009 at 10am Pacific Time (1pm EST).  Anybody connected with the food industry and concerned with risks affecting the industry should consider registering.  I have been involved with planning this event. No other use of 60 minutes will give you as much insight into the most current issues in food law. The cost begins at $35 for section of litigation members and ranges to $150 for non-ABA members.

The panel, moderated by Jessie Ziegler at Bass, Berry & Sims, PLC, Nashville, TN, includes the most diverse voices available: 

Robert E. Brackett, Ph.D, Senior Vice President and Chief Science and Regulatory Affairs Officer, Grocery Manufacturers Association, Washington, DC

Ricardo Carvajal, Of Counsel, Hyman, Phelps, & McNamara, PC, Washington, DC

Stephen Gardner, Director of Litigation, Center for Science in the Public Interest, Dallas, TX

Sherry A. Marcouiller, Chief Counsel, Food Law, Kraft Foods Global, Inc., Northfield, IL


Happy New Year and Thank You

Happy New Year. Thank you for your support, readership and feedback for this site. Since we launched the blog in late February of 2008, the growth in readership has been extraordinary. I'm overwhelmed at the response. My hope is that the blog has provided some measure of assistance to those in the food industry. As always, I welcome your feedback, suggestions and critiques.

In the coming year, I hope to spend more time on the blog exploring trends in liability, insurance coverage and consumer claims related to the food industry. I also hope to discuss more deeply the anatomy of consumer-based food borne illness and labeling litigation.

You may notice a drop-off in the frequency of postings between February and April as I will be spending more time on the road. I apologize in advance. One of the things I will be doing (and posting about) is visiting with students and faculty at the Cornell Food Science program in Ithaca, New York. I hope to learn more about emerging technologies related to food production and safety.