November 01, 2017 GPSolo

Starting a Niche Practice in Food Law

Michael R. Reese
Appetite, an universal wolf.

—William Shakespeare

Troilus and Cressida, Act I, Scene III

Food law in the United States is a vast and fascinating area that has grown tremendously in the last decade. Just in the past ten years, the number of class actions filed involving food has increased almost 100 percent; rules and regulations have multiplied at both the state and the federal levels; and entire departments of scholarship dedicated to the subject have opened at leading academic institutions such as Harvard University and the University of California, Los Angeles (UCLA).

Not surprisingly, many legal practitioners—be they attorneys working at large, multinational firms or solo or small boutique shops—have come across food-related work. The purpose of this article is to offer some guidance on starting a niche practice in food law and to provide some tools for those looking to build a food law practice. This article also will provide some tips on how to avoid a common pitfall when starting a food law practice. As Shakespeare warned in Troilus and Cressida, appetite, while a universal wolf, will often eat itself. This article will hopefully help you avoid such a situation.

A Primer on Food Law Litigation

It starts with complete command of the fundamentals.

—Jesse Owens

While the scope of food law can be broad—running the gamut from contracts to torts to criminal law—a great amount of attention, and attorneys’ billable hours, has been spent in the last few years on litigation relating to food marketing claims, which often result in multimillion-dollar settlements or verdicts. These cases typically are brought as class actions that allow for the aggregation of damages because most of the food-related cases involve small individual damages, typically capped at the few dollars spent by the consumer to purchase the food item. Moreover, since the passage of the federal Class Action Fairness Act (CAFA) in 2005, almost all these cases proceed in federal court, subject to Federal Civil Procedure Rule 23. This section of the article discusses the leading cases in this field, which are required reading for anyone interested in litigating consumer protection food law actions, either on the plaintiff or defense side.

Williams v. Gerber Prods. Co., Inc., 552 F.3d 934 (9th Cir. 2008). This decision by the Ninth Circuit is the seminal opinion with respect to claims brought related to food packaging and marketing. Williams established that to prevail on a claim under California law, a plaintiff need not establish that a statement regarding a food product is necessarily false, but only that it is likely to mislead a reasonable consumer. Williams set this “reasonable consumer” standard based on consumer-friendly protection laws in California. Not surprisingly given the state’s size (if it were its own country, California would have the world’s sixth-largest economy), a large number of food law–related cases are filed there. However, Williams is important not only because it set the standard for food marketing claims in California, but also because it is relied on by many courts in other jurisdictions. Williams has been cited more often than any other food law case, more than 2,800 times, and its reasoning has been applied to consumer protection causes of action pertaining to food marketing brought in several other states, including New York (Atik v. Welch Foods, Inc., 2016 WL 5678474 (No. 15-cv-5405 MKB, S.D.N.Y. Sept. 30, 2016)), Florida (Barron v. Snyder’s-Lance, Inc., case no. 13-cv-63496, 2015 WL 11182066, *13 (S.D. Fla. March 20, 2015)), and Illinois (Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 762 (7th Cir. 2014)).

Briseno v. ConAgra Foods, Inc., 844 F.3d 1141 (9th Cir. 2017); Briseno v. ConAgra Foods, Inc., 674 Fed. Appx. 654 (9th Cir. 2017). The Ninth Circuit also issued one of the most recent significant decisions related to food law litigation. In Briseno v. ConAgra Foods, Inc., plaintiffs moved for class certification for the claims of certain purchasers of ConAgra’s popular Wesson Oil that had been labeled “natural.” Plaintiffs alleged that they were misled because the product contains genetically modified organisms (GMOs) and therefore is not, in fact, “natural.” In its two separate decisions the Ninth Circuit addressed several important class action issues relating to food litigation, namely, ascertainability, administrative feasibility, reliance, and damage modeling. The ConAgra cases also are the first federal appellate cases dealing with whether products containing GMOs may be labeled “natural”—which has become a hotbed of litigation in recent years.

Ackerman v. Coca-Cola, Inc., 2010 WL 2925955 (No. 09-cv-0395, E.D.N.Y. July 21, 2010). Ackerman v. Coca-Cola, Inc. is a magnum opus decision on a motion to dismiss, and it highlights many of the intricacies and difficulties confronting consumer class action food litigation. Plaintiffs in that case alleged that Coca-Cola’s vitaminwater products misled consumers regarding sugar levels in the product. In a scholarly opinion, Judge John Gleeson tackled myriad issues including the federal regulatory scheme governing food labeling, preemption, primary jurisdiction, federal pleading standards under both Federal Civil Procedures Rules 8(a) and 9(b), and consumer reliance.

Avoiding the Pitfall of Food Law

“A plethora of piñatas!”—El Guapo to Jefe, ¡Three Amigos!

Although food litigation pursuant to state consumer protection statutes may command a lot of attention and time, food law actually encompasses many different legal disciplines that range from contracts to torts to civil procedure to public policy. As one of the leading legal thinkers on food law—Professor Michael T. Roberts of UCLA—recently stated in an interview (tinyurl.com/jqepz7w):

Food law and policy is multidoctrinal: it interacts with other types of legal doctrine. Food law is primarily administrative law, but it also encompasses property law (ex: zoning and urban agriculture), international law (trade and standards-making), torts (litigation), health law (food safety and nutrition), environmental law (food production) . . . and the list goes on and on. This multidoctrinal approach to law allows food law and policy to seek practical solutions to food problems. In a sense, food law and policy responds to changing social conditions, which is a characteristic of modern law.

It is important as a food law practitioner to keep an eye on the larger philosophical debate regarding food law and policy, as this could impact long-term strategies for your food law clients. Thus, a major pitfall of food law is focusing on winning the battle but losing sight of the war. The larger context of food trends and food policy is often discussed at leading food law conferences that can be the stepping stone for you to start, or expand, a successful food law practice.

Fortunately for the new food law practitioner (or seasoned veteran), there is a plethora of information sources that: (1) educate the food law practitioner on everything from the basics of food law to the most recent cutting-edge developments and (2) introduce the practitioner to potential clients and others working in the space, who often are looking to team up with like-minded food law practitioners.

This article now will discuss several valuable food law conferences that can provide great sources of information to any food law practitioner. Each is excellent in its own way, and they are discussed here in alphabetical order.

CLE International. CLE International (cle.com) holds an annual two-day food law conference at which practitioners, academics, government regulators, and in-house counsel from major food companies gather to discuss food law–related issues. (In the spirit of full disclosure, I am a co-host of this conference.) In 2017 the conference was held in Austin, Texas, and included professors from UCLA and Harvard, representatives from the non-governmental organization Center for Science in the Public Interest, the Grocery Manufacturers Association, representatives from the federal government, and in-house counsel from General Mills, Inc., Starbucks Coffee Company, Whole Foods Market, and other major food companies.

The goal of the conference is to generate discussion and debate among all major stakeholders in food law. The next conference will be held in Denver, Colorado, April 19–20, 2018. (More information regarding the 2017 conference can be found at tinyurl.com/yd79bbsx.)

Food and Drug Law Institute. The Food and Drug Law Institute (FDLI, fdli.org) is a nonprofit group founded in 1949. It is a membership organization that holds several conferences that are open to members and non-members alike. The conferences cover a wide array of food law subjects, ranging from Food and Drug Administration (FDA) rules and regulations to class action litigation. As a neutral convener, FDLI provides a venue for stakeholders to inform innovative public policy, law, and regulation, and it is often attended by corporate counsel of major food companies; government representatives from the Federal Trade Commission, the FDA, and other governmental agencies; the National Advertising Division of the Better Business Bureau; non-governmental organizations (typically based in Washington, D.C.); and litigators from both the defense and plaintiffs’ bars.

Indeed, FDLI has a “New to Food and Drug Law Group,” which “offers young professionals with up to six years of experience an opportunity to connect, learn from their peers, and enhance their skills.” Individuals affiliated with member organizations, those employed by the government, and law students are encouraged to participate (tinyurl.com/y9zj6b4c).

FDLI’s most recent food law conference—Introduction to Food Law and Regulation—was held October 11–12, 2017, in Washington, D.C. The next annual FDLI conference will be held May 3–4, 2018, in Washington, D.C. (for more, see tinyurl.com/yde3y8lj). Information on additional conferences can be found at fdli.org/programs.

Grocery Manufacturers Association. Founded in 1908, the Grocery Manufacturers Association (GMA, gmaonline.org) is the leading trade group for the food and beverage industry in the United States. A membership-based organization, GMA holds an annual food claims and litigation conference, as well as several other specialized conferences, including those on foodborne illnesses and regulatory requirements. The GMA conferences tend to cater to the needs of corporate clients but also allow for the perspective of plaintiffs’ counsel. GMA also offers webinars on a number of food law subjects.

GMA’s most recent conference—Food Labeling Workshop: Complying with Regulatory Requirement for the Labeling of Packaged Foods—was held October 3–5, 2017, in Washington, D.C.

Perrin Conference. Perrin Conferences (perrinconferences.com) is an independent marketing and conference company that hosts large-scale national litigation conferences. For the past several years, Perrin Conference has held an annual one-day Food and Beverage Litigation Conference that focuses on the litigation challenges facing food and beverage companies. Past participants have included Landry’s, Inc.; Pinnacle Foods, Inc.; the National Restaurant Association; Cargill, Inc.; and the Campbell Soup Company. The conference provides key insights and pointers for litigators who focus on food and beverage–related claims.

The most recent Perrin Food and Beverage Litigation Conference was held October 25, 2017, in Chicago, Illinois.

Union Internationale des Avocats. The Union Internationale des Avocats (UIA, www.uianet.org/en) is an international group of attorneys with headquarters in Paris, France. While the goals and reach of the organization are quite broad, a recent special Food Law Commission headed by Stefano Dindo from Verona, Italy, has focused on food law.

Since its inception, the Food Law Commission of the UIA has met semi-annually, with conferences in Verona, Paris, and, most recently, Toronto, Canada. The Food Law Commission also periodically offers specific training courses on starting an international food law practice, with the last one offered in Paris, February 3–4, 2017. More information regarding that conference can be found at tinyurl.com/yar4veqv.

The UIA presents special networking opportunities for those looking to build an international food law practice, including, but not limited to, import/export law, country of origin litigation, and international regulation. More information of the UIA Food Law Committee can be found at tinyurl.com/y9z3wrly.

Additional resources. Case law on food-related actions continues to develop rapidly, with new decisions rendered almost weekly by federal district courts alone. Several law firms have websites dedicated to providing updates on recent developments in food law litigation. Among those are Perkins Coie LLP’s blog, available at tinyurl.com/y7cj73r4.

Conclusion

“It takes a village.”—Hillary Clinton, quoting African proverb

The above discussion of resources available to one looking to start or expand a food law practice is certainly not exhaustive. Indeed, the law and scholarship on food law is as vast as the subject itself. This should come as no surprise, given the importance that food plays in our everyday lives, as well as its political and socioeconomic implications. Perhaps one of the most gratifying aspects of being a food law practitioner is the almost universal recognition in our society of the importance of food and the laws pertaining to it. This threshold meeting of the minds often engenders a willingness to cooperate and assist one another—both on the same side of the table and across the table. Certainly, this author is available to answer any additional questions that you might have regarding this fascinating area of the law.

It takes a village.

—Hillary Clinton, quoting African proverb

Michael R. Reese has litigated food law–related class actions on behalf of consumers for more than a decade. He also is an adjunct professor at Brooklyn Law School, where he teaches on class actions and food law. Prior to entering private practice, he served as an assistant district attorney at the Manhattan District Attorney’s Office. He and his firm frequently work with nonprofit groups to address food-related issues. He is co-hosting a food law conference in Denver, Colorado, April 19–20, 2018, for CLE International.