Food & Chemicals Unpacked Mark Thompson and Katie Skaggs

This episode explores California’s Safe Drinking Water and Toxic Enforcement Act of 1986, also known as Proposition 65. Partner Sophie Castillo, an attorney from Keller and Heckman’s California Proposition 65 and Litigation practices, shares her insights on complying with Proposition 65. Sophie provides background on the law, the significance of a Proposition 65 warning, preemption and other legal challenges, as well as Office of Environmental Health Hazard Assessments (OEHHA) and bounty hunter activity. Additionally, the episode dives into trends in the chemicals and product categories targeted by bounty hunters.

The 8th episode of Food & Chemicals Unpacked dives into the inner workings of the National Advertising Division (NAD), the advertising industry’s self-regulatory mini court. Keller and Heckman attorneys Katie Bond and Samuel (Sam) Butler, both from our Advertising and Promotion practice, join us to provide an overview of all things NAD. We cover its origin, the structure of NAD proceedings, the interaction between the NAD and the Federal Trade Commission (FTC), what types of companies participate in NAD challenges, the appeals process, and more. The episode highlights the findings of a new analysis by Katie and Sam on changing outcomes at the NAD over the past few decades.

In this episode, we take a more traditional legal focus as we discuss potential changes to a cornerstone of federal administrative law, called Chevron Deference. This standard has long governed how much deference federal courts give to decisions made by agencies, such as FDA and EPA. It is based on a 1984 case, Chevron v. National Resources Defense Council, that the Supreme Court recently agreed to reconsider in an upcoming case this fall. Keller and Heckman Partners Eric Gotting and David Joy join us to discuss potential implications for FDA and other agencies if the Supreme Court decides to vacate the Chevron decision or limits is application, as well as legislative developments such as the Food and Drug Omnibus Reform Act of 2022. They use recent federal court decisions in Genus Medical Technologies LLC. v. U.S. FDA and Catalyst Pharmaceuticals, Inc. v. Becerra to illustrate how Chevron Deference works and what changes may be in store for FDA and the regulated community.

This episode offers a roundtable discussion on the regulatory landscape surrounding “green claims” in the United States with Keller and Heckman partners Sheila Millar and JC Walker. This detailed conversation touches on numerous advertising claims of interest to brand owners that are currently under consideration by the Federal Trade Commission (FTC) in an effort to update its “Green Guides.” The FTC is currently accepting comments on key claims addressed in the Guides (e.g., “recyclable,” “recycled content,” “degradable,” “compostable,” and “carbon offset”), which are commonly leveraged by consumer brands. Sheila and JC also address the impacts that evolving state legislation and court rulings have on the use of green claims within the market.

The topic of this episode is Extended Producer Responsibility (EPR) programs for packaging materials, which have begun to proliferate in the U.S. Four states have now implemented EPR programs, others have proposed legislation, and more states are expected to follow suit in the years to come.
Keller and Heckman Partner Rachel Bond joins our hosts to discuss EPR and related sustainability issues. Rachel provides insight into regulations, requirements, and exemptions in place for current EPR programs. Associate Caleb Holland also reports on EPR legislation, both at the federal and state level.

This episode details the regulatory landscape for tobacco products and reports on current trends in the industry. Our team shares its knowledge of the process for obtaining authorization to market new tobacco products in the U.S. We also provide the inside scoop on industry-shaping litigation that Keller and Heckman has led. Finally, the episode discusses recent changes at FDA’s Center for Tobacco Products and how the changes might impact industry.