Salmonella outbreaks. Agency warning letters. Lawsuits challenging “All Natural” food labels. As the food and beverage industries become more complex, they require effective legal representation that can quickly evaluate potential liability and craft the most appropriate responses to suspected product adulteration, alleged foodborne outbreaks or environmental contamination claims.
For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food and beverage companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.
As part of our regulatory review work on labeling, we analyze health and nutrient content claims—ensuring that they accurately represent ingredient and nutrition information, and include proper disclosures. We advise clients on country-of-origin labeling requirements and the overlapping impact of Customs and Federal Trade Commission standards. We also regularly counsel food manufacturers, suppliers and transporters subject to U.S. Food and Drug Administration regulations, ranging from pathogen prevention to facility inspections, product recalls and crisis management.
With many of our attorneys and research analysts holding advanced degrees in agriculture, biology and genetics, our clients benefit from the firm’s deep knowledge of the technical and scientific complexities associated with food production. We routinely assist multinational companies with regulatory compliance matters and alert them to critical industry developments through the Food & Beverage Litigation and Regulatory Update, which tracks legal trends in the food and beverage production sector.
Representative Matters
Alcoholic Beverages
Shook is longtime counsel to a large brewing company, regularly providing advice on regulatory and compliance matters.
Shook represented a major beer brewing company and related entities facing a putative class action seeking recovery for money given to children by their parents and guardians and purportedly misspent on the purchase of alcoholic beverages. An appeals court affirmed the lower court’s dismissal of the claims for plaintiff’s failure to allege an actionable injury and lack of standing. The court also found that the defendants’ alleged youth marketing did not “actionably interfere with the parent-child relationship.”
Shook represented another brewing company in a different jurisdiction facing claims that it targeted its marketing to underage consumers. The plaintiffs sought disgorgement of profits earned from the alleged illegal sale of alcoholic beverages. The court dismissed the plaintiffs’ claims alleging violation of state unfair competition laws and subsequently dismissed the remaining claims. Other similar matters were dismissed before trial.
Food Product Manufacturers, Distributors and Retailers
Shook represents the manufacturer of a spray butter product in a putative statewide class action alleging deceptive labeling and marketing in the use of the descriptors “fat-free” and “calorie free.” A motion to dismiss is pending.
Shook attorneys successfully defended putative nationwide class actions filed by plaintiffs alleging that our client failed to disclose the trans fat content within food it manufactured and sold. According to the plaintiffs, the company’s products failed to include on product labels the number of grams of trans fat in a serving or the statement “Not a significant source of trans fat,” in violation of state and federal law. Before defendant answered the complaints, Shook persuaded plaintiffs’ counsel to dismiss the cases, based on an analysis of appropriate regulations and a Rule 11 letter.
Shook currently provides food safety counsel to a major food products distributor and represented it in a matter involving the alleged contamination of fresh produce. Shook also defends food-borne illness cases for one of the largest U.S. retailers.
A major retailer also retained Shook attorneys to advise its suppliers on appropriate product labeling to both comply with the law and avoid liability for misleading and deceptive product claims.
Shook is defending multiple consumer class actions in which plaintiffs claim grocery retailers violated the Florida Deceptive and Unfair Trade Practices Act by failing to disclose whether any pollen was removed from honey products during ordinary processing.
Restaurants
Shook attorneys represented one of the nation’s largest restaurant chains in a case involving drink contamination claims. Shook succeeded in getting the case dismissed in its entirety within three months.
Shook currently represents a multinational corporation facing claims that E. coli-tainted food at one of its restaurants caused injury to two minors.
Shook has extensive experience representing national restaurant chains on their acquisition/leasing, sale and financing of sites throughout the country. Our attorneys have also represented a national restaurant company in refranchising more than 490 sites in 27 states.
Shook attorneys consulted with national restaurant chains when activist organizations threatened litigation related to the sodium content of the restaurants' menu offerings.
Shook has defended a restaurant client facing charges of age discrimination in federal court and defended other claims against restaurants brought by the Equal Employment Opportunity Commission.
The firm has guided the debt-financing, negotiation and consummation of a cash-out merger, and prepared related proxy materials in our representation of the controlling shareholder of a large publicly traded restaurant chain franchisee in “going private.”
Shook maintains a databank of material relating to nationwide restaurant menu-labeling initiatives that began in New York City and now apply nationally under the Affordable Care Act.
Our Public Policy Group has worked with the National Restaurant Association on a number of issues, including preventing liability for obesity-related claims. We have also developed and supported the enactment of state and federal legislation to curb obesity claims.
Soft Drinks and Non-Alcoholic Beverages
Shook lawyers defeated class certification in a Missouri case involving alleged misrepresentations about the artificial sweeteners used in soft drinks.
We successfully settled a class action for soft drink companies alleging that certain products could become contaminated with benzene when exposed to excessive light or heat.
After minimal discovery, we successfully settled a nationwide consumer fraud class action against the manufacturer of kombucha tea products in California state court.
We currently handle numerous class actions consolidated in an MDL in the Eastern District of New York alleging that the advertising and marketing of certain water beverages is misleading under state consumer fraud laws. A motion to dismiss was granted in part, and class certification is currently pending. Shook also represents this client in copycat class action litigation pending in courts throughout Canada.
Shook represents an orange juice manufacturer in numerous class actions consolidated in one MDL in the Western District of Missouri, alleging violation of state consumer fraud laws.
We represented a beverage manufacturer in a consumer fraud class action in the Southern District of Illinois over the allegedly deceptive marketing of its beverages. After completion of limited discovery, the judge granted the company’s motion for summary judgment and denied plaintiffs’ motion for class certification as moot.
Snack Food and Candy
Shook attorneys assisted a snack maker facing litigation alleging that it misled consumers by labeling and promoting its products as “all natural,” “healthy” and “non-GMO.” Without admitting liability, the company agreed to settle a class action by establishing a modest settlement fund and reformulating its labeling claims.
A federal court in California agreed with Shook attorneys that state-law false-advertising claims, involving snack foods labeled “0 Grams of Trans Fat,” were preempted by federal nutrition-labeling laws. The court dismissed the claims without leave to amend.
Shook represents a company involved in litigation alleging that diacetyl exposure caused a debilitating lung condition known as bronchiolitis obliterans. Diacetyl is the chemical used in butter flavoring that was long used by microwave popcorn manufacturers.
Supply Chain
Shook attorneys are assisting a bakery food supplier with regulatory issues affecting its product line worldwide. The firm has helped the client address country-specific labeling issues in Saudi Arabia and consulted with numerous USDA Foreign Agricultural Service offices to address Spanish dialect labeling in several Latin American countries.
Shook attorneys rewrote a compact for six major biotechnology companies to establish a neutral process, using the services provided by the permanent Court of Arbitration in The Hague, to pay the claims of U.N. member states if a company’s living modified organism, as defined in the Cartagena Protocol on Biosafety, should be released and cause damage to biological diversity.
Shook was retained by a major international food and consumer products firm to research 80 countries’ commodity laws and regulations regarding food additives, pesticide residues, import and export regulations, shipping and handling standards, labeling, and testing requirements.
Shook assisted Wyoming ranchers who allegedly defrauded a government milk distribution program by illegally selling dairy products overseas in violation of the False Claims Act. The parties agreed to settle the case.
Trademark Infringement
Shook, with co-counsel in Washington, D.C., represented a leading Italian organic fruit-spread processor whose distributor surreptitiously appropriated its trademark and began selling counterfeit products in the United States.
Shook represented a soft drink company in a case claiming that the company had infringed the trademark of the plaintiff’s caffeinated beverage product. Shook attorneys were successful in proving that the plaintiff created any alleged consumer confusion between the companies’ respective marks. A successful motion for summary judgment early in the case removed several of the plaintiff’s products from the litigation thus decreasing our client’s potential damages exposure.
