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Food Litigation and Regulatory Highlights – February 2021

Our monthly digest of litigation and regulatory highlights impacting the food and beverage industry.  February saw another win for industry on the vanilla front, a preemption win in California state court, and FDA continuing with COVID-19-related warning letters and foreign supplier verification enforcement.  Let’s take a look….

CFPB Rescinds Abusive” Policy Statement, Signaling Broader and More Aggressive View of Abusive” Authority

In a significant but unsurprising move, the CFPB announced that it was rescinding a policy statement issued in January 2020 that sought to tether the Bureau’s abusive” authority to certain limiting principles.  The move signals that the Bureau is likely to interpret its authority to prevent abusive acts and practices” under the Dodd-Frank Act more broadly and use that authority to initiate new enforcement against industry.

Bad Break for belVita Breakfast Biscuits

Judge Cynthia Bashant of the Southern District of California granted a plaintiff’s second bite at the apple (or rather biscuit) to certify a class of purchasers of belVita breakfast biscuits in McMorrow v. Mondelez International, Inc.  The plaintiff alleged that Mondelez falsely labeled its belVita biscuits as providing NUTRITIOUS SUSTAINED ENERGY;”  NUTRITIOUS STEADY ENERGY ALL MORNING;” and 4 HOURS OF NUTRITIOUS STEADY ENERGY.” The plaintiff contended those statements were false or misleading in violation of California and New York law because the breakfast biscuits are not nutritious, and actually contain high amounts of added sugar and can increase the risk of serious diseases, including CHD, stroke, and other morbidity.

NAD Finds That Humor Doesn’t Always Indicate Puffery

The American Association of Orthodontists ran a series of social media ads for Happy Mouth Now, a fictional teledentistry company, which showed consumers struggling with the company’s products. The ads are funny, unless you work for a non-fictional teledentistry company, in which case you’d likely choose another adjective to describe them. 

Senators Circling Antitrust Targets, But Not Yet Closing In

At a hearing of the Antitrust Subcommittee of the Senate Judiciary Committee, Chair Amy Klobuchar (D-MN) emphasized the need for broad antitrust reform. While she rallied bipartisan support to supplement antitrust budgets and encountered little opposition for helping news outlets bargain with social media, prospects for her sweeping S. 225, the Competition and Antitrust Law Enforcement Reform Act remain uncertain.

Competition Policy Gets a Top Spot in the White House

Following weeks of speculation about a potential role for Columbia Law Professor Tim Wu in the Biden Administration, the White House announced on March 5 that Wu has been named Special Assistant to the President for Technology and Competition Policy. As an official housed in the National Economic Council (“NEC”), Wu will not directly command staff within federal agencies or set the agencies’ enforcement or regulatory agendas. Instead, Wu will most likely focus on coordinating federal agencies’ efforts to identify and address competition issues. Given his history, Wu could seek to have particular influence on the Federal Communications Commission (“FCC”) and Federal Trade Commission (“FTC”) as they shape their Biden Administration agendas.

Kelley Drye’s COVID-19 Weekly Digest

Kelley Drye has been monitoring developments and providing up-to-date information about the potential legal and business implications of the coronavirus pandemic. Advisories and legal updates on COVID-19 from this week are below and can be found on our COVID-19 Resource Center on our website.


A collection of the top older reads this past week:

Dietary Supplement and Personal Care Products Regulatory Highlights – February 2021

Two’s Company: Virginia Has a Comprehensive Data Privacy Law

Chopra Navigates Questions and Predicts Priorities at Friendly CFPB Nomination Hearing

Second Circuit Limits Copyright Damages To Those Incurred Within Three Years Prior to Suit

Does the NAD’s Capillus Decision Baldly Contradict the FDA?

Peloton Faces Uphill Ride on Ever-Growing” Claims

The Pink Tax: Discrimination or Actual Differentiation?

The CCPA Non-Discrimination Right, Explained

Read This Before Scanning A Driver’s License In New Jersey

NAD Releases Tips for Influencer Marketing

Biden Taps Rohit Chopra, Current FTC Commissioner and Vocal Proponent of Aggressive Enforcement, to Lead CFPB

Penn State Football’s Super Bowl Claims Flagged on Social Media

State Privacy Bills Gain Momentum

Dietary Supplement and Personal Care Products Regulatory Highlights – January 2021

Food Litigation and Regulatory Highlights – January 2021

Find these and other stories on the Ad Law Access blog and podcast. Also see the Advertising and Privacy Law Resource Center, available via KelleyDrye​.com, our online repository of our thought leadership and resources on subjects that affect our clients day-to-day.

External Reads: Privacy

America, Your Privacy Settings Are All Wrong
New York Times

IAB State of Data Initiative 2021

A Publisher’s Unvarnished Take On The Cookidentity Crisis

Charting a course towards a more privacy-first web

Google’s Privacy Sandbox—We’re all FLoCed


Introduction to Food Law and Regulation: Dietary Supplements

March 18, 2021”,“Webinar
Food and Drug Law Institute
Donnelly McDowell

Crystal Ball Gazing: Post-Election Antitrust

March 24, 2021”,“Webinar
ABA Antitrust Section Virtual Spring Meeting 2021
Bill MacLeod

Consumer Protection Remedies

March 24, 2021”,“Webinar
ABA Antitrust Section Virtual Spring Meeting 2021
John Villafranco

Strategies for Commissioner Meetings in CP Cases

March 24, 2021”,“Webinar
ABA Antitrust Section Virtual Spring Meeting 2021
Donnelly McDowell

Hot Topics

March 25, 2021”,“Webinar
ABA Antitrust Section Virtual Spring Meeting 2021
Alysa Hutnik


12th Annual USF Update Webinar

Monday, March 22nd at 12:00pm ET

Please join us on March 22, 2021 for Kelley Drye’s annual webinar discussing the state of the federal Universal Service Fund. This webinar, back for its 12th year, provides an in-depth look at all four USF programs and the USF contribution mechanism, highlighting major developments in the last year and trends for the upcoming year. In addition, this year we will discuss how the ongoing pandemic has influenced the importance of the USF and related policy decisions.

This webinar supplements the knowledge our clients gain from the monthly USF Tracker to provide context and analysis of the issues you need to know.

The 12th Annual Update will address the following, among other topics:

    • The COVID-19 Telehealth Program
    • The Connected Care Pilot and Rural Healthcare Program
    • Lifeline and the Emergency Broadband Benefit (EBB) Program
    • E-Rate Outside the Classroom
    • The Rural Digital Opportunity Fund (RDOF) and Broadband Mapping
    • Rip and Replace
    • Contributions Reform

This unique educational event should be attended by anyone involved in the federal USF programs. Regardless of how you participate in the Federal USF programs today, this webinar will provide new insights and recommendations for making the most of this $9 billion program.

IN FASHION: Kelley Drye’s 7th Annual Fashion & Retail Law Summit

Wednesday, April 14, 2021”,“9:30 AM - 1:30 PM ET

Please be our guest at the 7th Annual Kelley Drye Fashion and Retail Law Summit. The virtual event will include a half day of presentations addressing hot button issues that influence the fashion and retail industries. The topics to be presented were selected by many of you who responded to our IN FASHION 2021 planning survey, including IP Issues, live event cancellations, retailers’ concerns in a Biden Administration, the future of personalized advertising, and more sessions will be added.
This seminar is by invitation only. If you have an in-house colleague who would like to receive an invitation, please contact infashion@​kelleydrye.​com.