Food, beverage, and agribusiness companies are under pressure to scale across global markets while preserving consumer trust in product safety and quality. The regulatory landscape is multilayered, with overlapping requirements across products, suppliers, and jurisdictions. Our food, beverage, and agribusiness lawyers help you navigate this complexity so your business can move forward as market and regulatory conditions evolve.
Our agribusiness law practice represents participants across the industry ecosystem, including growers, manufacturers, distributors, retailers, trade associations, restaurants, and investors. We integrate legal guidance with business strategy, helping you preserve brand value while supporting the commercialization and distribution of products throughout the supply chain.
We bring firsthand regulatory and policy insight to advise you on developments that can impact your business. Our team includes lawyers who previously served in senior positions within federal agencies, on Capitol Hill, and in trade and industry organizations. Leveraging that experience, we advise you on compliance, investigations, enforcement actions, and other regulatory and policy matters before key agencies, including:
US Food and Drug Administration (FDA)
FDA Center for Food Safety and Applied Nutrition
Federal Trade Commission (FTC)
Department of Justice (DOJ)
US Department of Agriculture (USDA)
USDA Food Safety and Inspection Service (FSIS)
USDA Food and Nutrition Service (FNS)
USDA Animal and Plant Health Inspection Service (APHIS)
USDA Foreign Agricultural Service (FAS)
Alcohol and Tobacco Tax and Trade Bureau (TTB)
Occupational Safety and Health Administration (OSHA)
Our regulatory experience spans food safety and quality control programs, recalls, labeling and advertising matters, import and export requirements, licensing, e-commerce, alcohol regulation, supply chain controls, and trade policy issues affecting global market access.
As regulatory scrutiny and operational pressures increase, so can the likelihood of disputes. Our lawyers represent you in high-stakes consumer class actions, product liability and toxic tort claims, false advertising disputes, and supply chain and distributor conflicts. We also advise you on internal investigations, congressional inquiries, and regulatory enforcement proceedings that can impact your operations and reputation.
To support growth across new markets and product lines, we guide you through domestic and cross-border transactions – including mergers and acquisitions, joint ventures, financings, restructurings, and strategic investments across the US, Europe, Asia, and other global markets. We also help you protect and commercialize agribusiness intellectual property, while navigating the antitrust, regulatory, tax, and operational issues that affect your ability to grow.
To remain competitive, food, beverage, and agribusiness companies must evolve and innovate to meet the demands of an expanding population. As your business scales, our food, beverage, and agribusiness lawyers help you manage regulatory, operational, commercial, and reputational risks, so you can adapt to change without disrupting your business.
Companies in the alcohol and regulated beverage industry operate within a post-Prohibition regulatory system designed to limit market control. The framework governing the industry separates producers, distributors, and retailers – creating regulatory and operational challenges across the supply chain. Our alcohol regulatory and distribution lawyers help you navigate this complexity so your business can grow.
We represent key stakeholders across the regulated beverage ecosystem, including alcohol manufacturers, multinational suppliers, importers, distributors, retailers, investors, and newer participants, including cannabis businesses. As alcohol, wellness, and consumer products converge, companies and investors are increasingly exploring opportunities in the cannabis industry.
Our alcohol regulatory and distribution team collaborates with lawyers across transactions, litigation, intellectual property, tax, trade, privacy, and consumer protection to help you navigate regulatory complexity, reduce financial exposure, protect your brand, and pursue strategic growth opportunities.
This integrated approach gives us insight into how the regulated beverage ecosystem works – from supplier and distributor relationships to market expansion, product innovation, and evolving consumer trends. We advise on the legal, regulatory, and commercial issues that shape the industry, including:
Trade practices and tied-house compliance
Distribution systems and commercial agreements
Product approvals, labeling, advertising, and promotions
Licensing, permitting, and regulatory compliance
Import, export, customs, and tariff matters
Direct-to-consumer and evolving retail models
M&A, investments, and strategic business transactions
Intellectual property, consumer protection, and tax matters
Government investigations, enforcement actions, and disputes
Our lawyers help you comply with federal and state alcohol laws while minimizing disruption to your business. When enforcement actions or disputes arise, we represent you in government investigations, regulatory proceedings, trade disputes, internal investigations, and related litigation involving federal agencies – including the Alcohol and Tobacco Tax and Trade Bureau (TTB), US Food and Drug Administration (FDA), Federal Trade Commission (FTC), and US Customs and Border Protection (CBP) – as well as state agencies nationwide.
Alcohol businesses and other regulated beverage companies operate in an industry where distribution restrictions and fragmented federal and state requirements create significant market barriers. Our alcohol regulatory and distribution lawyers guide companies, investors, and other industry participants through all phases of growth – helping you overcome obstacles in a rapidly evolving industry.
Antitrust & Competition
Food, beverage and agribusiness clients rely on us for guidance on the full range of antitrust and competition-related issues within the United States, Europe, China and elsewhere around the world. We advise clients on all aspects of antitrust compliance and litigation involving merger control, cartels and government investigations.
Many of our lawyers have held senior positions in the Antitrust Divisions of the US Federal Trade Commission (FTC) and Department of Justice (DOJ). Internationally, we represent clients before the Directorate General for Competition (European Commission) as well as EU Member State enforcement authorities, Chinese enforcement agencies, and federal and national judicial systems in the United States, Europe and Asia.
We have extensive experience conducting antitrust and regulatory compliance audits and risk assessments, and advising domestic and multinational clients on antitrust market positioning. Our lawyers provide strategic counsel on distribution practices and the structuring of distribution network agreements, and assist clients in evaluating and implementing favorable modifications to their distribution systems and relationships.
We also advise on complex distribution issues involving two-sided markets, margin squeeze, parallel trade, internet distribution (including e-commerce), pricing, rebates, bundling, differential treatment of customers, aftermarkets and dominance. When appropriate, we develop strategic approaches for implementing the termination of a single distributorship or a system-wide change. We have been involved in some of the largest mergers and acquisitions, and our antitrust litigators are leading the defense of two of the largest class action price-fixing litigations in the industry.
China
Food, beverage and agricultural products have played an essential role in the growth of the Chinese economy. Companies with investments and operations in China face a host of rapidly multiplying laws and regulations in areas such as antitrust, tax, labor and employment, and intellectual property. Domestic and foreign businesses at every step in the production, distribution and retail chain also must address international trade, tariff, food safety and product liability concerns.
Corporate and Mergers & Acquisitions
McDermott Will & Schulte’s corporate practice represents a wide spectrum of food, beverage and agribusiness clients around the world, including multinational corporations, their boards and committees, privately owned enterprises, and the financial institutions that support business growth. In addition to providing practical counsel on the legal and business issues that face clients every day, our corporate lawyers advise on key corporate transactions, including mergers, acquisitions, joint ventures, strategic alliances and divestitures. We also advise on accessing public and private markets for capital and provide the full suite of corporate legal services to support publicly held companies, including securities-related regulatory compliance and reporting.
Our lawyers collaborate seamlessly across multiple legal disciplines—such as regulatory compliance, antitrust, tax, labor and employment, intellectual property, finance, environmental, real estate and, when necessary, litigation—to leverage deep practice and industry knowledge and provide effective and efficient results.
Our M&A team delivers sophisticated legal counsel on domestic and cross-border transactions. In recent years, we have advised on significant deals in the United States, Canada, the Caribbean, Western Europe, Central Europe, the Middle East, Africa and Asia. As a globally integrated team with offices in the United States, Europe and Asia, our highly recognized lawyers are skilled at managing complex transactions involving the most challenging jurisdictions. Where needed, we also work regularly with a comprehensive network of local law firms who meet our high standards of knowledge and service.
Our M&A team has the flexibility to advise under the full range of governing laws commonly used in transactions in the food, beverage and agribusiness sectors worldwide. We are ever mindful of our clients’ goals and their expectation that we negotiate and close deals with creativity, sensitivity, professionalism and an eye toward cost-effectiveness.
Government Strategies
Carefully targeted congressional and executive branch advocacy can be a cost-effective, preemptive strategy for many food, beverage, and agribusiness companies in addressing legislative or regulatory impediments. Our experienced government relations lawyers help clients bring priority attention to a specific issue, move the discussion toward solutions that promote our clients’ interests, and help resolve problems that might otherwise languish within government bureaucracy. Our policy and legislative team has worked extensively on Capitol Hill and with US federal and state government agencies, and our reputation as a trusted contributor to legislative and policymaking processes allows us to maintain strong relationships with government decision makers. We design strategies, lobby officials directly, write testimony or public comments for official proceedings, and advance client interests by maintaining their visibility.
Intellectual Property
From product development to marketplace delivery, the associated intellectual property involved in a product’s lifecycle is the differentiating competitive element companies active in food, beverage and agribusiness (FBA) must guard and cultivate. To do so requires a law firm steeped in the legal nuances specific to the market, with the ability to identify potential issues before they arise, and to respond swiftly when necessary.
McDermott Will & Schulte’s intellectual property practice includes exceptional experience representing leading food, beverage and agribusiness companies in patent, trademark, copyright, unfair competition and false advertising matters. Our IP lawyers have played substantial roles in some of the largest corporate- and tax-driven projects in which IP assets are central to the transactions.
In fact, we are recognized by clients, peers and industry groups in Chambers USA, Chambers Global, Corporate Counsel, Intellectual Property Today, IAM Patent 1000 – The World’s Leading Patent Professionals, Legal 500, Managing IP and World Trademark Review 1000 – The World’s Leading Trademark Professionals.
Clients benefit from a coordinated team approach that brings together the skills and legal acumen of our intellectual property and regulatory lawyers to address the numerous associated issues involving labeling, packaging, advertising, brand and logos. In so doing, we help clients ensure compliance with the regulations of the many agencies that can impact the FBA industry, while also helping protect and cultivate clients’ IP assets.
Our team combines a wide array of technical backgrounds, including biotechnology, chemistry, industrial packaging and engineering, and practical work experience to provide pragmatic solutions to FBA clients’ needs. We can quickly identify, protect and maximize the value of proprietary technology, and provide patentability, infringement, validity and freedom to operate opinions. In addition, we can evaluate the value of IP portfolios in association with corporate transactions covering M&A, outsourcing and licensing agreements. The result of our combined technical and legal experience is an IP practice with the skills necessary to cover the full range of IP needs facing companies active in the FBA industry.
Litigation
From contract issues with distributors or suppliers, to false product claims or a product recall, commercial disputes are an inevitable part of doing business in the food, beverage and agribusiness industries. We draw on our deep bench of litigators, which includes lawyers with substantive experience and knowledge in class actions, consumer fraud, data privacy and breaches of privacy, FDA compliance, false claims, and marketing and pricing.
Product liability issues and class action exposure are major concerns for many of our clients in this sector. We have extensive experience representing food stores and food processors in toxic tort litigation and in suits alleging various types of personal injury. Our class action lawyers obtain precertification dismissals and summary judgments, defeat class certification and obtain decertification of classes in multijurisdictional cases across the United States and internationally.
Our white-collar and securities defense practice helps clients navigate difficult challenges, including internal and external investigations. Following reports of potential misconduct or violations of state or federal regulations, we assemble experienced teams that respond to government investigations, including congressional hearings and parallel proceedings, and defend companies at trial. We work swiftly and discreetly to resolve issues with the goal of minimizing reputational harm and business and financial disruptions.
In the event that a corporation suspects wrongdoing or impropriety by one of its employees, officers, agents or distributors, we conduct confidential internal investigations to determine the nature and extent of the suspected misconduct, assess the implications of an employee’s alleged misconduct, criminal or otherwise, and advise company officers on how to handle a matter of noncompliance. We help identify possible improvements in policies, procedures, communications and training to help avoid the development of further problems.
Regulatory & Compliance
Our Food, Beverage & Agribusiness team comprises leading regulatory lawyers who advise on the regulation, licensing, distribution, labeling, current Good Manufacturing Practices, e-commerce, advertising, false claims and marketing of food and beverage products, as well as their related inputs.
We regularly represent clients and trade groups in preparing and submitting comments to agencies on emerging regulatory issues. For example, the passage of the Food Safety Modernization Act has ushered in a new wave of regulatory proposals and challenges for those involved in the production, storage and distribution of foods. These proposals will significantly change the manner in which many companies in this space will operate in order to remain in accord with the law’s requirements.
We assist growers, processors and distributors in developing food safety and quality control programs that help them meet the regulatory requirements of the FDA Center for Food Safety and Applied Nutrition, the USDA’s Food Safety and Inspection Service, the Food and Nutrition Service, the Animal and Plant Health Inspection Service and the Foreign Agricultural Service. Our alcohol regulatory and distribution team is active at the Alcohol and Tobacco Tax and Trade Bureau and the FTC, and is involved with the control authorities in almost every US state.
As the pace of regulatory and law enforcement efforts by the FDA and USDA has increased, we have represented numerous companies in handling a range of enforcement actions. When regulatory investigations or product recalls arise, we provide comprehensive crisis management assistance and advise in connection with related proceedings.
Our experienced Occupational Safety and Health Administration (OSHA) team also advises industry clients on compliance issues and the full range of enforcement actions. We have pioneered approaches that have shaped existing policies and have successfully handled many of the largest OSHA enforcement actions.
Tax
Despite the challenges posed by the complex tax laws and regulations facing the food, beverage, and agribusiness industry – particularly for companies operating in multiple jurisdictions – forward-thinking clients can take steps to eliminate tax inefficiencies, mitigate potential tax liabilities and resolve tax controversies favorably. With one of the largest law firm tax practices in the world at our disposal, we provide comprehensive counsel on international, federal, state and local tax issues virtually everywhere our clients do business.
We regularly advise on transfer pricing planning; compliance and controversy resolution; tax-free and taxable acquisitions, joint ventures and restructurings; in-licensing and out-licensing of intangibles; product sales and transactions with foreign affiliates and repatriation of earnings from foreign affiliates; and employee compensation and benefits.
Our skilled tax litigators represent food, beverage and agribusiness companies and agricultural cooperatives in controversies at the administrative level and in the courts. Proactively, we work with clients to present their views on tax legislation and regulation to lawmakers and government officials who develop tax legislation and regulations.
“The McDermott Will & Schulte team is highly professional and effective. Their advice is highly practical and straightforward, and they are able to make complicated matters approachable for us.”
Chambers USA
Fuel Missions. Knock Down Barriers. Shape Markets.
Références
Mergers & Acquisitions
A global integrated supply chain manager of agricultural products and food ingredients, on multiple cross-border transactions in the United States, Europe, Russia and West Africa
A US agricultural marketing cooperative in acquiring the assets of a multinational food company in China
A large Belgian brewing company, in its acquisition of a large American craft beer company
Constellation Brands in winning dismissal of antitrust claims challenging its $4.75 billion acquisition of the entire US business of Grupo Modelo S.A.B. de C.V., brewer of Corona brand beer and related brands, from Anheuser-Busch InBev
A manufacturer, marketer and distributor of branded alcohol beverages in Ireland and the United Kingdom, in its acquisition of a US hard cider company
One of the largest wine companies in the world in establishing a joint venture with one of China’s largest food companies
A large chocolate maker in its acquisition of several pet food and snack companies
A German family-owned snack food company and its affiliated companies on multiple transactions, including on its landmark acquisition of a British snack food unit
Regulatory & Compliance
Secured from the FDA the first approval ever issued for the laser-etching of fruit for food traceback, including development of a testing program to convince the FDA of the safety and utility of such process
Defended one of the largest agricultural chemical enforcement cases initiated by the EPA and the DOJ
Secured EPA approval of a new agricultural product to address plant pest problems
Secured expedited EPA and USDA approval for the use of the agrochemical required to treat and import Australian cottonseed to the United States, as well as establishing the associated chemical tolerances consistent with the Federal Food, Drug and Cosmetic Act, as amended, and Plant Protection Act requirements
Pursued the interests of numerous clients on the FDA’s oversight and enforcement approach to food ingredient issues, food safety, recalls and implementation of the FSMA requirements, and dietary supplement regulations and requirements
Advised a trade organization in ongoing issues related to the regulation of ammonium nitrate with the US Department of Homeland Security, including assisting in crafting the legislation that ultimately was approved by Congress, and assisting the client in working with Homeland Security to develop implementing regulations
Counseled a US brewer on the food safety status of ingredients, processing aids and food contact substances used in the production and packaging of the company’s beer products
Advised an international spirits company on all aspects of intellectual property, advertising law and regulatory compliance for brand-related websites, multimedia marketing campaigns and brand promotions
Represented various companies in the alcohol industry with securing label approvals from TTB for many cutting-edge alcohol beverage products
Counseled various clients in drafting comments on numerous recent federal rulemakings, including those on nutritional and ingredient labeling, use of the word “pure” in distilled spirit labeling and advertising, flavored malt beverages, organic labeling, health claims and health-related statements in labeling and advertising, changes to the mandatory government warning statement, other-than-standard wines, “plain language” malt beverage regulations, and aggregate and misleading packaging
Intellectual Property
Mars, in multiple matters, including:
The successful settlement of a trademark infringement suit. Mars Inc. v. the Hershey Co. et al., Civil Action No. 1-14-cv-00399 (Eastern District of Virginia).
A patent case involving the processing of cocoa beans to extract flavanols (heart-healthy chemicals) which were then used as ingredients in Mars’ products such as Dove Dark Chocolate.
The Pernod Ricard Companies, including Absolut, Chivas, Ballantine, Kahlua, Malibu, Martell, Mumm, Perrier-Jouët and other top brands, in a full complement of trademark, copyright, advertising, counseling, patent and litigation matters, including:
In US district court trademark infringement and dilution cases in New York, California, Illinois and other jurisdictions.
In UK high court litigation against TIML Radio (a division of the Times of India), in relation to the rebranding of Virgin Radio (following its acquisition by TIML) as “Absolute Radio.”
Before the Venice Court of Appeal regarding the enforcement of the Absolut Community three-dimensional trademark in the shape of the famous Vodka Absolut bottle. The legal grounds of the defense in the appeal proceedings focused on the protection of Community three-dimensional trademarks such as the shape of the Absolut Vodka bottle and well-known trademarks.
Heineken brewing company in the successful defense arising from the painting over of a mural in Los Angeles with a “Newcastle” advertisement. The case involved claims under the Visual Artist Rights Act and the California Artists Protection Act. The case settled favorably with no monetary payment by Heineken. Annie Sperling v. Barry Mason Enterprises Inc. et al., Case No. 2-12-cv-10804 (Central District of California).
Sunny Delight, whose products include SunnyD, Fruit 2O, Veryfine, Elations, Boss Nova and Fruit Simple, in patent prosecution, counseling and litigation relating to its brands, product formulations, packaging and bottles.
Monsanto, a global agriculture company, in multiple matters, including:
Winning $1 billion patent verdict, which at the time was the fourth-largest patent jury award in history, against DuPont and involving Roundup Ready Soybeans.
As IP counsel related to the patent protection for genetically modified crops and crop chemicals.
NaturaLawn of America, an organic-based lawn care company, in multiple actions, including:
Claims of trademark infringement against a former franchisee, breach of the franchisee agreement and the violation of the Maryland Uniform Trade Secrets Act. We secured a default judgment on behalf of NaturaLawn, which included monetary damages and a permanent injunction. NaturaLawn of America, Inc. v. Safer Naturally Lawncare, Inc. et al., Case No. 1-13-cv-02609 (District of Maryland).
The infringement of NaturaLawn’s trademarks by a former franchisee, breach of the franchisee agreement and violation of the Maryland Uniform Trade Secrets Act. NaturaLawn of America, Inc. v. Gro-Bro, Inc. et al., Case No. 1-11-cv-03166 (District of Maryland).
Olam International, a leading global integrated supply chain manager and processor of agricultural products and food ingredients, in its acquisition of Con-Agra.
Scotts Miracle-Gro Company, in obtaining a significant settlement in a Lanham Act false advertising litigation brought against a major competitor, regarding various advertising claims that were arguably within the purview of federal agency regulations. The case settled favorably for Scotts as a result of the competitor’s complete agreement to stop all misleading advertising at issue. The Scotts Company v. Central Garden & Pet Company, Civil Action No. 2-09-cv-478 (Southern District of Ohio).
WKI Holding Co. Inc. and World Kitchen LLC as global intellectual property counsel, including in trademark matters and in patent freedom-to-operate evaluations and analyses, patent prosecution and litigation relating to bakeware, dinnerware, household tools, cookware and cutlery products manufactured and marketed, such as CorningWare®, Pyrex®, Corelle®, Revere® and EKCO®.
Secured wins in dozens of contested domain name disputes, including victories on behalf of Absolut, Dogfish Head, Papa John’s and Tyson Foods brands.
Antitrust & Competition
A multibillion pet food business in an acquisition, with securing US antitrust clearance
A global agribusiness in its acquisition of a competitor’s worldwide cocoa operations
A global brewer conglomerate in the successful negotiation with a large Mexican brewer, resulting in one of the largest divestitures in history, ensuring approval of its $20 billion merger, creating the third-largest brewer in the United States
Litigation
An American subsidiary of a global, Swiss-based agribusiness company in the successful defense from two purported class actions brought by community water systems. The matters concerned allegations that, as a herbicide manufacturer, the company was liable for the presence or potential presence of a toxic substance in the water supplies used by the water systems.
A soft drinks and beverage products company with affirming the denial of class certification in a putative class action lawsuit where the plaintiff asserted consumer fraud and unjust enrichment claims related to the use of saccharin. We defeated the plaintiff’s motion for class certification because the proposed class included countless consumers who suffered no injury by the alleged nondisclosure.
A brewer with product liability advice on a wide variety of subjects, including potential advertising liability, personal injury claims and industry-wide issues involving health and public policy. We also represented the company in a lawsuit filed by a trade association of Belgium brewers that objected to its labels and packaging on certain products. No damages were paid and the case was dismissed.
A chocolate manufacturer with securing summary judgment, after a lengthy seven-year legal battle, in a class action on behalf of direct and indirect purchasers of chocolate candy alleging that manufacturers conspired to fix the prices at which they sold chocolate candy in the United States.
A dairy cooperative with obtaining an early and complete dismissal of a consumer fraud and antitrust class action lawsuit regarding allegations of attempted manipulation of the Chicago Mercantile Exchange’s Cheese Spot Call.
An organics company with securing one of the very few dismissals of a qui tam false patent marking case in federal court in Chicago.
An alcohol company in a distributor dispute that was one of the largest cases of its kind. The plaintiff alleged that our client had wrongfully terminated them as a distributor. After successfully defeating the motion for preliminary injunction, the case went to trial on the merits of multiple claims, including novel issues implicated in laws unique to the alcohol industry.
Defeated class certification and successfully moved to dismiss several actions on behalf of a larger company and multiple franchises in litigation that included federal and state court cases throughout the country. In those cases, the plaintiffs alleged that company misled them and the general public regarding the presence of gluten, whey and dairy derivatives in french fries.
Tax
A Fortune 200 global fast food restaurant company with state and local tax issues, along with the development of a national strategy for defending all state tax controversies
Dairy Farmers of America with multiple projects, including $500 million of syndicated revolving loan facilities and a $150 million term loan
OSI Group, LLC, a premier food solutions provider to leading brands across the globe, in its $350 million term loan with Rabobank
Dogfish Head Craft Brewery, a popular US craft brewery, with a significant growth equity investment from a private equity firm
Duvel Moortgat, a Belgian brewing company, in its acquisition of Firestone Walker, a Central Coast California-based craft brewer
Levy Restaurants, a worldwide leader in the sports and entertainment foodservice industry, in its strategic acquisition of Prom Management Group, Inc.’s national sporting event food, beverage and catering business
A global producer of spirits, wines and beer products, as tax counsel, including representation in tax controversy matters, large-scale planning projects, and a variety of transactional and advisory matters
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