Industries: Food & Beverage

Latest News:

Leslie Locke Article on Capper-Volstead Act in ABA Agriculture and Food Committee e-Bulletin (1/17/2012)

Angela Spivey and Jim Neale Present Food Safety Webinar (9/21/2011)

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McGuireWoods provides comprehensive services for companies that produce, distribute or sell food and beverages, as well as the businesses that deal with them. We represent manufacturers, processors, packers, farmers, storage holders, distributors, brokers, wholesalers, and retailers in all matters from obtaining land on which to build facilities, to recalling product and litigating food safety cases, when necessary.

Regulatory Compliance

State, local, national and international regulations govern nearly every aspect of the food and beverage industry, from importing/exporting commodities, to facility management and advertising. Companies must ensure that products and policies comply with rules set by various agencies such as the U.S. Food and Drug Administration (FDA) and the U.S. Department of Agriculture (USDA).

We help food and beverage industry clients address compliance through consulting, training and advisory services. We advise companies regarding enforcement risk and options for mitigating risk in areas where compliance requirements are unclear. Our primary objective is to help clients accomplish their business goals while complying with the law. We advise clients on and advocate changes to FDA regulations, including food and beverage labeling, nutritional claims, country of origin, standards of identity, safety, and the evolving bioterrorism regulations, which impose new obligations on all food and beverage importers.

Representative Services

FDA & USDA Inspections (including responding to Form FDA-483 inspectional observations)
Hazard Analysis & Critical Control Points (HACCP) & Good Manufacturing Practice (GMP) Compliance
Recalls & Market Withdrawals
Response to Warning Letters & “Dear Manufacturer” Letters
Corrective Actions
Import Detentions
Seizures, Injunctions & Criminal Prosecutions
Complaints by or about Competitors
Day-to-day FDA Compliance Issues

Disputes & Litigation

While anticipating regulatory challenges will minimize the risk of most potential problems, enforcement matters nevertheless can arise. We represent businesses and individuals in all FDA Office of Criminal Investigation (OCI), USDA, and DEA litigation. We understand how to investigate charges, build cases, and muster facts that support our clients – whether before the federal courts or the agencies’ administrative law judges. Due to the extreme sensitivity surrounding issues of FDA-related allegations, it’s critical for clients to work with business counsel who are rooted in real-world experience.

McGuireWoods offers the complete range of legal advice, from the establishment and maintenance of compliance programs to representation before OCI, U.S. Attorneys' Offices, the U.S. Department of Justice, and in FDA enforcement proceedings. We represent clients in matters ranging from warning letters, to defending companies and individuals facing criminal prosecution.

Our Foodborne Illness Litigation Practice Group is a highly regarded nationwide practice with particular experience in defending food manufacturers, suppliers, restaurants, and packaging entities in foodborne outbreaks caused by various pathogens such as E.coli and salmonella. From regional outbreaks to widespread international outbreaks, we assist clients with all stages of the recall process, from notifying regulators to public relations.

We defend and counsel clients on a host of issues relating to foodborne illnesses including the management of class action litigation; defense of individual personal injury actions as well as multidistrict litigation; recalls; regulatory oversight, investigations and compliance; governmental investigations; commercial disputes with vendors, wholesalers and retailers; first- and third-party insurance issues and claims; and media relations.

Commercial Transactions

Whether large multinational companies or small “mom and pop” shops, businesses in the food and beverage industry face commercial issues involving securities, financing, franchising, intellectual property, and mergers and acquisitions. We offer a team adept at handling these issues for the food and beverage industry in particular, backed by the full bench strength of a 900+ lawyer firm.

We often play a key role in structuring business transactions to comply with and take advantage of existing federal and state regulations, and we help clients through the political process in order to advance their goals. Our experience in representing the food and beverage industry includes acquisitions and divestitures, negotiated and hostile tender and exchange offers, leveraged and management buyouts, private equity and venture capital investments, recapitalizations and reorganizations, and joint venture transactions.

We also handle a broad range of commercial loan, project finance, public finance, healthcare finance, and asset securitization transactions. Clients include restaurant chains, food and beverage manufacturers, private equity and investment firms, food service management companies, and distributors.

Food & Beverage Sectors

Some issues in the above mentioned areas affect certain sectors of the food and beverage industry uniquely, while other issues span the industry as a whole. We understand the nuances, and provide counsel and representation to clients in each sector.

Manufacturing & Processing

From the time a product or ingredient leaves the field or farm, it must comply with complex laws and regulations governing production, packaging and labeling. Food and beverage manufacturers and processors especially must be attuned to the nuances of each law.

Commodities

At the outset of the food and beverage cycle, those involved in growing and processing commodities must comply with regulations set forth by the FDA and USDA, which house the Food Safety and Inspection Service (FSIS); Farm Service Agency (FSA); Food and Nutrition Service (FNS); Agricultural Marketing Service (AMS); Animal and Plant Health Inspection Service (APHIS); Grain Inspection, Packers and Stockyards Administration (GIPSA); and Risk Management Agency (RMA). We have extensive experience in:

Environmental issues including regulatory permitting and compliance in pesticide approval, use and remediation, securing water rights and permitting of water supplies and discharges, regulation of non-point discharges from farms, odor issues, and agricultural wetlands programs.
Import issues including entry, classification and value, penalty, and other Customs matters, as well as U.S. import trade legislation such as antidumping, countervailing duties, and related measures for redressing unfair trade practices or providing assistance to U.S. industries injured by imports. We also represent clients in U.S. International Trade Commission (ITC) proceedings.\
U.S. export control and anti-boycott laws, international competition policy, export finance, international payment procedures, foreign exchange matters, global customs laws and procedures, and international transportation. We provide representation before the U.S. Customs and Border Protection (CBP) and the U.S. Court of International Trade.
Antitrust exemptions under the Capper-Volstead Act, which gives “associations” of persons producing agricultural products certain exemptions from antitrust laws.
Immigration issues such as obtaining specialty occupation visas for farm managers.

Processing & Packaging

In addition to the capabilities of our Foodborne Illness Litigation Practice Group, which defends food manufacturers and packaging entities in foodborne outbreaks, our experience includes:

Antitrust issues involving price fixing, restraints, and distribution and monopolization of products and packaging. We handle grand jury investigations, and appear before federal and state antitrust enforcement agencies to resolve concerns about clients' practices and transactions.
Product development-related intellectual property issues such as licensing agreements, manufacturer and distributor registrations, pending legislation, product corrective actions, and regulatory aspects of product development. We help secure rights to critical technologies, manage patent portfolios, negotiate licenses and other agreements to generate revenue and increase market penetration, perform patent-related due diligence in connection with proposed transactions, and advise on the use of patents to enhance competitive position.
Packaging-related intellectual property issues involving product and ingredient notifications, bioresearch and FDA inspections, regulatory and due diligence audits, and Good Manufacturing Practice and Quality Systems Regulation requirements. We appear before the U.S. Patent & Trademark Office in all phases of the product development cycle.

Wholesale & Distribution

McGuireWoods offers the full range of corporate and litigation services to wholesale and distribution clients in the industry, ranging from entrepreneurs and start-up concepts to some of the nation’s largest distributors. We assist industry wholesalers and distributors with:

Supply chain services including vendor selection and negotiation of legal and business agreements.
Business transactions including identifying and solving the complicated legal questions involved in structuring and financing distribution channels; renewing, revising and expanding existing distribution channels; and the acquisition, syndication, sale, and termination of channel members.
Intellectual property advice on every aspect of the protection, exploitation, and leveraging of clients’ trademarks, copyrights, media rights, patents, and trade secrets. We advise on licensing agreements, manufacturer and distributor registration, pending legislation, product corrective actions, and regulatory aspects of product development.
Product advertising and promotion issues, including FTC and FDA requirements for endorser liability, comparative advertising, substantiation of claims, false and deceptive advertising, rights of privacy and publicity, nutritional labeling, and country of origin labeling.
Outsourcing computer systems to enhance warehouse operations and track goods through integrated enterprise resource planning and warehouse management systems.
Data privacy and security issues for wholesalers and distributors engaging in online inventory and ordering.

Retail

Restaurants, grocers, and other retailers are subject to regulations regarding operation, food and beverage safety, sanitation, worker protection, and licensing requirements. Their structures are often based on a franchising system, which requires complex business transactions and oversight.

The firm’s Franchise and Distribution Practice works alongside our food and beverage team to provide a full spectrum of services to clients who are involved in the distribution of products or services in franchise systems. We are experienced in the application of state and federal distribution and franchise laws pertinent to each client's business, and have represented clients in matters involving antitrust and restraint of trade, as well as international distribution and franchise law. Our experience includes:

Franchise location repurchases and resales, including structuring, negotiating, documenting, and closing sales and repurchases of franchised locations. We have closed hundreds of these transactions throughout the country, and understand the issues they entail from the franchisor and franchisee perspectives.
Acquiring and divesting franchisors, franchisees, dealers and distributors. We have acquired national franchisor systems, including the franchise-granting entity and all franchised and company-owned locations. We represent franchisors selling company-owned units to franchisees and purchasing units owned by franchisees, as well as manufacturers and distributors acquiring their distributors and subdistributors.
Financing issues including representation of financing sources providing debt and equity capital to acquirors of franchise systems; and assisting franchisors, franchisees and financing sources in conducting due diligence investigations of acquisition candidates. These due diligence investigations typically evaluate franchise compliance and contractual issues, labor and employee benefit issues, intellectual property matters, and areas of risk exposure relating to contingent liabilities.
Dispute resolution among suppliers, resellers, brokers, dealers, distributors and franchisees. We have handled litigation and arbitrations throughout the country; have served as nationwide coordinating counsel for several national franchisors; and have acted as counsel for nationwide actions, antitrust matters, trademark and trade dress infringement, enforcement of system standards, terminations and collection of future royalties, refusals to renew or transfer, covenants against competition, discrimination, registration and disclosure issues, advertising, misappropriation of trade secrets, product liability, fraud and negligent misrepresentation, breach of fiduciary duty, breach of contract, tortious interference, good faith and fair dealing, state unfair and deceptive trade practices, and refusals to arbitrate.
FTC and FDA product advertising and promotion requirements, including endorser liability, advertising substantiation, false and deceptive advertising, and First Amendment protection. We counsel on matters such as website development agreements, search engine agreements, trademarks and co-branding, data privacy, and security.
Technology issues to help retailers manage purchasing operations.

Additional Representative Services

Business Reorganizations, Bankruptcy & Creditors’ Rights

We have represented bondholder and trade creditor committees, secured and unsecured creditors, and asset purchasers in some of the nation's largest food and beverage industry restructurings, reorganizations and bankruptcies. Our knowledge and abilities extend to matters involving producers, manufacturers, distributors and retailers. We have broad and deep experience in connection with negotiation and litigation concerning all aspects of complex corporate reorganizations, out-of-court workouts and leveraged buyouts. We also assist creditors in obtaining early payment of claims, and the pursuit and defense of fraudulent and preferential transfer issues, as well as the enforcement of security interests.

Immigration

Companies in the food and beverage industry are at the top of the Immigration and Customs Enforcement’s (ICE) priority list for enforcement action because they are part of the nation’s “critical infrastructure” of those involved in the food supply chain. Large food and beverage industry companies, with hundreds of employees in multiple locations – many with round-the-clock shifts – can be in the spotlight. Our immigration specialists counsel domestic and international companies and individuals in all areas of business immigration law, including compliance with immigration posting and work authorization verification requirements.

We have obtained business visas for executives to conduct feasibility studies in the United States; specialty occupation visas for farm managers; treaty trader and treaty investor visas for executives of various European, Asian and Latin American companies opening offices in the United States; intracompany transferee visas for managerial, executive, and technical personnel of multinational companies; visas under the North American Free Trade Agreement for professionals and management consultants; practical training work authorization for foreign graduates of U.S. universities; and reentry permits for permanent residents who wish to live abroad.

Labor & Employment

We counsel and represent food and beverage manufacturers, distributors and retailers in labor relations, discrimination complaints, employment agreements and terminations, affirmative action programs, immigration, reductions in force, employee benefits, and executive compensation. We practice preventive counseling to reduce exposure to employee complaints, governmental agency actions, and union problems.

Employee Benefits

We provide compliance counseling to employers on a range of employee benefits and executive compensation matters. We represent corporations and their benefit plans in litigation involving employment benefits and other obligations under Employee Retirement Income Security Act (ERISA). Through extensive work with the IRS and U.S. Department of Labor, we help companies establish tax-qualified retirement plans and non-qualified deferred compensation arrangements.

Supply Chain

McGuireWoods approaches supply chain services by working closely and regularly with each client’s lines of business, contract administrators and in-house attorneys. We work hand-in-hand with clients’ legal and business units to select vendors and draft and negotiate all necessary legal and business agreements to allow clients to develop strong contractual relationships for purchasing, telecommunications, professional consulting services, financing and risk management and licensing.

We routinely draft and negotiate complex commercial agreements, including boilerplate terms and conditions, purchase orders and statements of work. We also draft and negotiate master supply and manufacturing agreements; OEM agreements; value-added reseller agreements; master marketing agreements; sponsorship agreements; equipment disposition agreements; collocation agreements; national teleworker agreements; dedicated access agreements; metro-Ethernet agreements; independent sales contractor agreements; confidentiality and nondisclosure agreements; agreements for the purchase, sale or loaning of assets outside of the typical asset transaction; and technology contracts.

Real Estate & Finance

We help food and beverage clients establish and implement site selection criteria and secure promising locations, then see projects through to successful construction and build-out. We deal regularly with saturation and encroachment issues. Because real estate issues are naturally tied to financial ones – whether an entrepreneur needs money to turn an idea into a franchise system or a system is ready to grow – we help businesses raise capital through traditional bank lending, and public and private financing.