WLF Webcast on Effective Advocacy at EPA, TODAY 1:00 p.m. EDT

PodiumPic1To effectively shape rulemaking at today’s Environmental Protection Agency, lawyers must go well beyond the filing of expertly crafted comments. It’s no surprise, then, that the Center for Responsive Politics recently found that the Environmental Protection Agency is the second most lobbied administrative body in the federal government.

Join us TODAY, 1:00-2:00 p.m. EDT for a free WLF Web Seminar program entitled Don’t Rest on Your Written Comments: Pursuit of Successful EPA Advocacy. Our presenter is Foley & Lardner LLP partner Richard Stoll

Viewers will benefit from Mr. Stoll’s three decades of EPA advocacy and learn how to adroitly advance their interests both before and after official comments have been filed.  He will also discuss “sub-regulatory” guidance from the agency, how to pursue it, and how to put it to good use.

Registration is required for the program. Please click HERE to register. Go to our home page, http://www.wlf.org, to view the program at 1:00.

 

Quick Take: Some Possible Impacts of SCOTUS’s POM Wonderful Decision on State-law Food Labeling Class Actions

food-courtIn some of our commentaries on food labeling class actions (collected under the “Food Court” tag), we have lamented how such lawsuits end-run the federal Food Drug and Cosmetic Act’s (FDCA) prohibition on private enforcement. Defendants have argued that the FDCA preempts lawsuits brought under laws such as California’s Sherman Law or Unfair Competition Act. Regrettably, judges have rejected this argument, and have found preemption only if a lawsuit would impose labeling requirements beyond what Food and Drug Administration (FDA) regulations would require.

Plaintiffs and defendants in these suits expressed significant interest when the U.S. Supreme Court agreed in January to review a U.S. Court of Appeals for the Ninth Circuit decision, POM Wonderful LLC v. Coca-Cola Co. There, the Ninth Circuit ruled that the FDCA precluded POM’s federal Lanham Act suit charging that a Minute Maid Blueberry Pomegranate juice’s name and label were misleading. While POM Wonderful involved the interplay between two federal statutes, rather than between federal and state statutes, some opined that a broadly written Supreme Court opinion could either help state-law food labeling suit defendants defeat those claims or add powerful credence to plaintiffs’ arguments that the FDCA does not impede their private enforcement actions.

The High Court decided POM Wonderful on June 12. In an opinion authored by Justice Kennedy, the Court unanimously reversed the Ninth Circuit. While the ruling could inspire more Lanham Act lawsuits between  competitors, it is unlikely to have a major impact on the types of class actions being filed in The Food Court and elsewhere.

Justice Kennedy stated baldly that “this is not a pre-emption case,” and thus “the state-federal balance does not frame the inquiry.” POM Wonderful therefore will not impact arguments that the FDCA preempts state-law class actions challenging food labels. Justice Kennedy also observed “this is a statutory interpretation case,” and focused the Court’s analysis on whether the FDCA and the Lanham Act were complementary or conflicting. Continue reading “Quick Take: Some Possible Impacts of SCOTUS’s POM Wonderful Decision on State-law Food Labeling Class Actions”