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All-Natural, Rich with Essential Antioxidants: Product Advertising and Consumer Fraud Claims in the Food and Beverage Industry

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Produced on June 01, 2017

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Course Information

Time 1h
Difficulty Intermediate
Topics covered in this course: Advertising Food, Beverage, & Agriculture

Course Description

This program, led by attorneys Lauren Aguiar, Anthony Dryer, and Jordan Feirman, provides an overview of recent trends and decisions involving advertising claims and consumer fraud issues in the food and beverage industry. As food and beverage producers continue to tout their products’ health benefits — real, imagined or exaggerated — the courts, National Advertising Division and Federal Trade Commission are encountering an ever-growing docket of advertising disputes and putative class action litigation.

This program examines recent decisions and pending litigation involving food and beverage claims, and provides practical advice to both advertisers in this space and potential litigants who may be asserting or defending against such claims.

Learning Objectives: 

  1. Examine how courts and juries are treating food-related claims such as "all natural”
  2. Understand the current state of litigation and challenges related to genetically modified organisms
  3. Explore relevant National Advertising Division and Federal Trade Commission guidelines and regulations
  4. Understand the validity of Food and Drug Administration pre-emption following the U.S. Supreme Court decision in POM Wonderful
  5. Understand the role of the National Advertising Division and recent decisions governing food and beverage claims



Credit Information

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Faculty

Lauren Aguiar

Skadden, Arps, Slate, Meagher & Flom LLP

Lauren E. Aguiar represents U.S. and international clients in litigation and arbitration involving a wide range of commercial matters. Her experience includes federal and state court litigation, with a focus on complex, high-profile cases and trial practice.

Ms. Aguiar has represented clients in a variety of industries, as both plaintiffs and defendants, in a broad range of civil matters, including false advertising, copyright, trade secret, breach of contract, fraud and fiduciary duty litigation; joint venture and partnership disputes; and shareholder class actions.

Some of the more significant matters in which she has been involved include:

  • trial counsel for International Flavors & Fragrances, Inc. in a trade secret and breach of contract case in the District of New Jersey;
  • litigation counsel for Fresh Del Monte Produce, Inc. in various ongoing lawsuits and arbitrations to protect its global trademarks, licensing rights and supply contracts — including a successful jury trial against Del Monte Corporation involving false advertising and breach of contract claims. This trial victory was featured in Law360’s “How They Won It” column (May 23, 2012);
  • counsel for Endo Pharmaceuticals in a breach of contract and declaratory judgment action against Chartwell Therapeutics, arising out of a generic pharmaceutical distribution agreement;
  • trial counsel for Norwest Equity Partners in an expedited litigation in Delaware Chancery Court involving claims to a post-closing escrow account;
  • trial counsel for pharmaceutical company Impax Laboratories, Inc. in the Southern District of New York, resulting in the successful settlement of the litigation;
  • member of the trial team in federal and state class action litigation in California for a global automobile manufacturer regarding widely publicized vehicle recalls;
  • defended Verizon Wireless in expedited litigation in the District of Georgia against allegations of false advertising;
  • represented Spectrum Brands, Inc. in its successful trial in U.S. Bankruptcy Court in Texas involving a consortium of lenders;
  • defended MGA Entertainment in the Mattel v. MGA three-month jury trial in the Central District of California, a $1.8 billion case involving copyright infringement and various state law tort claims;
  • defended Storm Networks in expedited litigation in the Northern District of New York against allegations of breach of contract and tortious interference;
  • served as counsel for Jakks Pacific in a AAA arbitration involving a joint venture agreement;
  • represented Huntleigh USA Corporation in a trial in the United States Court of Federal Claims in its action against the federal government asserting a takings claim under the Fifth Amendment to the U.S. Constitution;
  • represented Starr International, Inc. and Maurice Greenberg in various lawsuits involving American International Group; and
  • represented an aircraft leasing subsidiary of the SwissAir Group in a case against Airbus Industries in the Commercial Division of New York State Supreme Court.

Ms. Aguiar regularly litigates in Surrogate’s Court, where she has led trust and estate litigations, including the representation of trustees in an action to remove them for alleged breaches of fiduciary duty; and a high-profile, protracted will contest involving allegations of incapacity and undue influence.

Over the years, she also has done a substantial number of internal investigations and compliance reviews, concerning allegations of securities fraud, accounting fraud, violations of the FCPA and insider trading. She has been involved with investigations by various regulatory bodies including the Securities and Exchange Commission, NYSE, FINRA and the Federal Trade Commission.

Ms. Aguiar is the chairperson of the Skadden Foundation, which runs the Skadden Fellowship Program.

She was selected for inclusion in Chambers USA: America’s Leading Lawyers for Business 2015 and 2016. Ms. Aguiar was shortlisted by Chambers for its Pro Bono Lawyer of the Year award in 2016. She also is a Fellow in the Litigation Counsel of America (an invitation-only trial lawyer honorary society) and was named a Rising Star in the 2016 edition of Benchmark Litigation. Ms. Aguiar also has repeatedly been cited by the Latin America Corporate Counsel Association ( LACCA) as a leading litigation practitioner.



Anthony Dryer

Skadden, Arps, Slate, Meagher & Flom LLP

Anthony Dreyer is a commercial litigator concentrating on intellectual property, sports, entertainment, and related licensing disputes.

Intellectual Property Litigation and Related Matters

Mr. Dreyer litigates matters involving trademark, copyright, rights of publicity, false advertising and consumer fraud claims. His recent matters include representing the NFL and its 32 member clubs in obtaining dismissal of a copyright infringement suit involving the use of game-action photographs. He recently represented the MLB, PGA TOUR and NFL as amici in 9th, 7th and District of Columbia cases involving the question of whether internet retransmissions of television broadcasts are entitled to a compulsory license under the Copyright Act. He secured preliminary and permanent injunctive relief on behalf of Virgin Mobile USA in nearly two dozen trademark infringement lawsuits. He has represented the Fresh Del Monte Group in protecting its trademark rights in the United States, Europe, Africa and the Middle East, and obtained an injunction against the use of the Del Monte mark in those territories. He has advised numerous China-based clients on matters involving U.S. trademark and copyright law, and recently obtained dismissal of copyright infringement claims against youku.com. He also counseled The Walt Disney Company in connection with its acquisition of Lucasfilm Ltd.

Mr. Dreyer also advises and represents clients in the areas of false advertising, advertising clearance and deceptive trade practice claims. He successfully defended SiriusXM in two separate putative class action lawsuits challenging the satellite radio provider’s subscription practices. He has represented the International Trademark Association in numerous amicus submissions, including Supreme Court amicus submissions involving questions of trademark tacking, standing to sue under the Lanham Act and the constitutionality of the Lanham Act’s prohibition against federal trademark registration for disparaging marks. Mr. Dreyer obtained a favorable jury verdict on behalf of Fresh Del Monte in an S.D.N.Y. lawsuit involving claims of false advertising and breach of a license agreement, securing a finding of willful false advertising and the issuance of permanent injunctive relief. He also Chairs the U.S. Amicus Committee for the International Trademark Association.

Sports Litigation and Related Matters

Mr. Dreyer has extensive experience counseling clients on a wide range of sports matters. He is representing the NCAA, NBA, NHL, NFL and MLB in a lawsuit brought against New Jersey Gov. Chris Christie to prevent New Jersey’s authorization and licensing of gambling on athletic events, and secured permanent injunctive relief on behalf of his clients. He represented the NBA in connection with its imposition of discipline against former owner Donald Sterling, and successfully obtained dismissal of claims Mr. Sterling brought against the NBA. He successfully represented golfer Rory McIlroy in a lawsuit brought against him by Oakley, a former sponsor, over an endorsement agreement Mr. McIlroy entered into with Nike. Mr. Dreyer also is representing the PGA TOUR in two separate lawsuits: one brought by golfer Vijay Singh relating to discipline imposed against Mr. Singh under the TOUR’s anti-doping program, the other brought by a putative class of TOUR caddies challenging the alleged use of the caddies’ name and likeness. He also successfully represented Madison Square Garden in a challenge to MSG’s ticket sales policies.

Mr. Dreyer has litigated numerous disputes on behalf of the NBA and its member teams. He represented the NBA in litigation relating to the league’s lockout of its players following expiration of the NBA’s collective bargaining agreement with its players. He has litigated player discipline and salary disputes on behalf of the NBA, the NHL and teams in both leagues. He has counseled both the NBA and the NHL in connection with disability insurance coverage matters. He represented the NHL in a dispute arising out of its sponsorship agreement with daily fantasy site DraftKings. Mr. Dreyer also has advised the United States Tennis Association in connection with the US Open and US Open Series tennis tournaments. He recently served a three-year term as chair of the New York City Bar Association’s Sports Law Committee.

*      *      *

Mr. Dreyer has repeatedly been selected for inclusion in Chambers USA: America’s Leading Lawyers for Business in the Nationwide Sports Law category and was named by the SportsBusiness Journal as a Power Player in sports law in 2016. He was named to the WTR 1000 by World Trademark Review in 2017 as a leading trademark practitioner. Mr. Dreyer was the recipient of the International Trademark Association’s Volunteer Service Award in 2015. He is an adjunct professor of law at Fordham University Law School, where he teaches courses on Advertising Law and Advanced Trademark Law. Mr. Dreyer also is an adjunct professor of law at Cardozo Law School, where he teaches Sports and the Law.



Jordan Feirman

Skadden, Arps, Slate, Meagher & Flom LLP

Jordan Feirman’s primary practice focuses on intellectual property and sports litigation, with experience handling all stages of cases involving copyrights, trademarks, false advertising, unfair competition, domain names, counterfeit goods, contract, and licensing disputes, and consumer class actions. Mr. Feirman also regularly represents clients in connection with intellectual-property enforcement issues, risk analyses, consumer surveys, opposition and cancellation proceedings before the U.S. Trademark and Trial Appeal Board, international intellectual property protection, and corporate mergers and acquisitions.

Mr. Feirman has served on the Copyright and Literary Property Committee of the New York City Bar presents on key developments in copyright and trademark law in webinars and has authored numerous amicus briefs, articles, and publications addressing emerging issues in copyright, trademark, and unfair competition law. Mr. Feirman co-authored the chapter on “Appeals” in the ABA Copyright Litigation Strategies treatise. In addition, Mr. Feirman represents a variety of musicians, artists, authors, and nonprofit organizations on a pro bono basis.  

Significant representations include:

 The National Hockey League in obtaining a permanent injunction and damages from a company that made beer steins replicating the design of the Stanley Cup trophy, and successfully defending against that company’s counterclaims challenging the league’s ownership of trademarks and trade dress rights in connection with the Stanley Cup trophy;

Matthew Bender & Company in securing dismissal of a consumer class action complaint in New York state court for alleged contractual breaches and deceptive practices regarding the company’s New York Landlord-Tenant Law publication, and affirmance of that dismissal on appeal;

Pinduoduo Inc. and its affiliates in securing dismissal on jurisdictional grounds of claims alleging trademark infringement and unfair competition based on activities taking place on the Pinduoduo e-commerce platform, and in obtaining an award of attorneys’ fees and costs against the plaintiff under the Lanham Act;

Fresh Del Monte Produce Inc. in multiple litigations and arbitrations, including securing a favorable jury verdict and post-trial relief against Del Monte Corporation for false advertising and breach of a trademark license agreement, and enforcing Fresh Del Monte Produce Inc.’s intellectual property rights in the U.S., Europe, the Middle East, and Africa; - MCS Advantage, Inc. and MCS Healthcare Holdings LLC, in a Lanham Act lawsuit in Puerto Rico concerning a competitor’s advertising regarding eligibility for new supplemental benefits available through Medicare;

Red Bull North America and its corporate parent in the defense of multiple putative class actions across the country challenging the nature and content of Red Bull’s advertising statements concerning its products’ benefits;

- The National Football League and its member clubs in a variety of intellectual property enforcement matters as well as a federal lawsuit brought by sports photographers asserting claims including copyright infringement and violation of U.S. antitrust laws;

MGA Entertainment Inc. in obtaining summary judgment against a claim of copyright infringement by the company’s “Bratz” dolls and affirmance of that judgment on appeal;

- The National Football League, National Basketball Association, PGA Tour and Major League Baseball in amicus briefs submitted to multiple U.S. Courts of Appeals concerning copyright issues and compulsory licensing in the FilmOnX/Aereokiller internet rebroadcasting cases;

-The National Collegiate Athletic Association, National Basketball Association, National Football League, National Hockey League and Major League Baseball in federal litigation concerning the legalization of state-sponsored sports gambling in the state of New Jersey; 

The National Collegiate Athletic Association, as a member of the trial team in a class action concerning the Association’s rules governing amateurism and student-athlete compensation;

- Jackson Hewitt Tax Service in litigating and ultimately settling a Lanham Act false advertising lawsuit against H&R Block; and

The Walt Disney Company in its $4 billion acquisition of Lucasfilm, Ltd.

Recent Publications

“Blunting Copyright Enforcers’ Excessive Settlement Demands,” Law360, June 3, 2020'

“Video Gaming / E-Gaming Law Update,” Skadden, Arps, Slate, Meagher & Flom LLP, August/September 2019

“US Supreme Court Strikes Down Ban of ‘Scandalous’ Trademarks,” Skadden, Arps, Slate, Meagher & Flom LLP, June 25, 2019

“US Supreme Court Holds That Bankrupt Companies Cannot Rescind Trademark Licenses,” Skadden, Arps, Slate, Meagher & Flom LLP, May 21, 2019

“U.S. Supreme Court Issues Two Unanimous Rulings Clarifying Meanings of ‘Registration’ and ‘Full Costs’ in Copyright Act,” New York Law Journal, March 27, 2019, and Skadden, Arps, Slate, Meagher & Flom LLP, March 5, 2019

“Federal Circuit Denies PTO Attorneys’ Fees,” Skadden, Arps, Slate, Meagher & Flom LLP, July 31, 2018

“Supreme Court to Clarify What Constitutes a ‘Registration’ Under the Copyright Act,” Skadden, Arps, Slate, Meagher & Flom LLP, June 29, 2018

“Supreme Court Seeks to Clarify Copyrightability of Design Features on Useful Articles in Cheerleading Uniform Case,” Skadden, Arps, Slate, Meagher & Flom LLP, March 23, 2017

Chapter 28 “Appeals,” Copyright Litigation Strategies, American Bar Association, 2017

“The SCOTUS Kirtsaeng decision: where do we go from here?” World Intellectual Property Review, July 29, 2016



Reviews

CM
Carol M.

Good discussion by all 3 panelists of issues.

SO
Stephen O.

Truly excellent presentation! Thoughtful examples and exercises Clear and cogent presentation of a complicated area.

AP
Andrew P.

Very interesting topic I learned much from the presenters Thank you!!

JP
Jean P.

Solid seminar and interesting area.

ST
Scott T.

Really excellent presenters and materials

OM
Otto M.

Great overview & case materials

RV
Ron V.

Very interesting course containing good content relevant to those who are curious about the topic.

EM
Eric M.

Exceptionally knowledgeable and high-caliber faculty!

VB
Vicki B.

Interesting and informative - many thanks

SJ
Shauny L J.

Excellent presentation. Thanks for making this available.

JB
Jamey B.

Great information in a short time.

VW
Valerie W.

Really good!

MS
Maria S.

This course was excellent...very well organized and presented

PD
Paul D.

Interesting and informative program.

NG
Nyoaka G.

I should not have been surprised, but I was... great presentation - disturbing information

JZ
Justin Z.

this was a enjoyable

JC
Jessica C.

Interesting topic

RW
Roman W.

Good overview; knowledgeable speakers. Good quick summary of pre-emption considerations.

JD
joseph d.

Excellent course.

AR
Andrea R.

Great program and great presenters! I will look for them again!

TL
Tara L.

Excellent

PC
PATRICIA C.

Interesting and well done.

LS
Lowell S.

Surprising

CM
Cynthia Coulter M.

Really liked the slides. Colorful and interesting.

DR
Dane R.

Excellent panel.

PH
Paula H.

Excellent and very informative!

HG
Howard G.

Impressive materials

KY
Karen Y.

Well presented.

KG
Kristen G.

Great content and information for the amount of time. I would be interested in a deeper dive.

MV
Michael V.

Very well-done. Probably the best presentation I've seen to-date on Lawline.

VS
Verlyn S.

Best Lawline presentation I've seen

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