Advertising and Marketing Law Content at the FDLI Annual Conference

This week, May 3 and 4, the Food and Drug Law Institute (FDLI) holds its Annual Conference in Washington, DC.  FDLI (I have heard insiders pronounce it “fiddly,” but I refuse to do so) covers all aspects of law and policy affecting food and drugs, including Food and Drug Administration (FDA) enforcement, intellectual property, state and local regulation, and the latest technological developments.  This year’s conference, which boasts nine senior official speakers from the FDA including Commissioner Gottlieb and Chief Counsel Wood, is entitled “Exploring Advanced Topics in Food and Drug Law” and reflects the organization’s broad focus.

With such a broad spectrum of legal topics on offer, our readers may ask, “What’s in it for the advertising and marketing lawyer?”  The answer, I found, is a surprising amount.  Here is a guide to the advertising and marketing content at the meeting, which may even tempt some of you to register and attend at the last minute.

Top Food and Drug Cases of 2017

When you arrive at the conference, check your meeting materials for your copy of Top Food and Drug Cases 2017 and Cases to Watch 2018, the FDLI’s annual journal-style booklet.  Two of the “top ten” 2017 cases covered in the book directly address advertising.  Megan Olsen of the Council for Responsible Nutrition wrote up the dismissal of the Federal Trade Commission’s (FTC’s) substantiation case against Quincy Bioscience, and Rebecca Kirk Fair of Analysis Group joined me in summarizing Singleton v. Fifth Generation, a/k/a the Tito’s Handmade Vodka case, and other recent cases about the ongoing search (by false advertising plaintiffs’ attorneys) for a damages calculation method that can reliably meet the Federal Rule of Civil Procedure 23(b)(3) predominance requirement to get a class certified.  Several of the other chapters describe drug labeling cases that will be of interest to marketing lawyers.  It was my privilege to serve as editor of the book this year.

May 3: You Look Like Your Dog, and So Does Your Food Litigation

You’ll want to attend the opening keynote by FDA Commissioner Scott Gottlieb, which may well touch on advertising and marketing issues.  Another must-see general session closes the day on May 3, when FDA Chief Counsel Rebecca Wood plays the day’s final chord with a talk that is also likely to implicate advertising and marketing concerns.

Among the breakout sessions on May 3, a panel discussion of “Trends in Animal Food Litigation” promises to be concerned mainly with pet-food advertising challenges by the FTC, before the National Advertising Division, and in private class actions.  You know how pets often seem to resemble their owners?  Well, this panel’s thesis is that pet food advertising litigation is beginning to look a lot like the many legal disputes over food for humans.

May 4: Please Don’t Spray Croutons on the Legal Expert

May 4 opens with the presentation of the Service to FDLI Award to Steve Armstrong, well known in marketing law circles as a former in-house marketing counsel at Campbell’s Soup, Schick-Wilkinson Sword, and Unilever.  It will be great to see Steve receive this well-earned tribute.  The morning breakouts include a panel on “Advertising and Marketing in a Mobile World,” headlined by FTC Bureau of Consumer Protection Assistant Director Rich Cleland.  That panel will discuss FTC and FDA enforcement of the marketing of food, drugs, and supplements through phones and other mobile devices.

During the Luncheon on May 4, the FDLI stages a “Facilitated Table Topic Discussion” event in which FDLI-member experts guide informal conversations on more than 30 topics at different tables around the dining room.  It’s a great opportunity to pick the brains of authorities on food and drug law issues while trying not to spray crouton crumbs at them.  I contacted the FDLI to ask what some of the topics are, and they include “Marketing Claims:  Cosmetics and Other Personal Care Products,” “Dietary Supplement Issues,” and “Scientific Exchange vs. Off-Label Promotion.”

The afternoon breakouts on May 4 include a panel on “Food and Dietary Supplement Hot Topics.”  Advertising and marketing litigation and enforcement will likely be among them.  Finally, for the closing session of the conference, be sure to stick around for the annual “Top Cases in Food and Drug Law,” in which I will be moderating a panel of three esteemed law professors for an in-depth discussion of some of the cases in the Top Cases volume and what to watch for in 2018.  There have been a number of developments in these cases since the booklet went to press, so expect some updates and surprises during the panel.

If you will be attending the conference, be sure to say hello to someone from our Foley Hoag team.  Dave Kluft and I will be there from the Advertising & Marketing law team, and Food and Drug Law partners Areta Kupchyk, Paul Kim, Mark Mansour, Marco Quina,and Christian Springer are also attending.  We’re going to be pretty hard to miss, so don’t try!  It’s a great chance to meet our team.

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