A food and beverage retailer's trademarks, copyrights and patents are some of the most important aspects of its brand. The Perkins Coie Intellectual Property group works closely with food and beverage companies to identify and protect the integrity of their brands to ensure that they distinguish themselves from their competitors. We help clients develop intellectual property strategies and programs, identify and perfect intellectual property rights and assert or defend those rights in court.

In the area of trademarks, we focus on all aspects of domestic and international trademark work, including counseling, trademark clearance, registration, licensing and enforcement. We have strong experience in the area of domain name disputes, Web site audits and other Internet-related issues. We also assist food and beverage clients with advertising review, counseling and dispute management.

Our patent attorneys are particularly skilled in successfully preparing and prosecuting patent applications in anticipation of licensing opportunities and potential litigation. The group provides domestic and international patent preparation and prosecution, patent portfolio development and management counseling, right-to-use analysis and counseling relating to design-arounds, legal opinions concerning patent invalidity and noninfringement and due diligence related to corporate transactions. We have significant experience with the technologies involved in the food and beverage industry, including food science, biotechnology, chemistry, processing and packaging.

We serve as business law advisors to retailers, manufacturers and other food and beverage companies. In this role, we provide counsel regarding a broad range of corporate and commercial matters including:

• Licensing, marketing and distribution agreements
• Mergers, acquisitions and dispositions
• Strategic partnering and joint ventures
• Private and public equity financings
• Debt financings
• Processing and supply contracts
• Board governance
• Shareholder voting and control matters
• Securities reporting and disclosure obligations
• Bankruptcy issues

Compliance with state, federal and industry-related rules, regulations and standards is a challenge for any company with a marketing and advertising-intensive business model. Noncompliance can result in class action lawsuits, state and federal investigations, and negative media coverage.

Our Advertising, Marketing & Promotions group assists food and beverage clients with a wide-variety of advertising, marketing and promotional issues, including:

• Drafting and negotiating agreements related to advertising, marketing and promotional campaigns, along with Web site hosting agreements, service agreements, ASP agreements and other agreements
• Reviewing advertising copy and promotional materials
• Strategic planning and compliance review for direct marketing campaigns, including e-mail campaigns
• Counseling and litigation regarding unfair competition, antitrust, comparative advertising, false advertising, trade disparagement, and rights of privacy and publicity

Our attorneys understand the unique legal and practical challenges food and beverage companies face when interacting with the public through Internet Web sites, e-mail, social networks and other electronic methods. We assist our food and beverage clients with e-commerce, social media, privacy and electronic payment issues, including:

• Complying with privacy and data security laws and managing security breaches
• Drafting and negotiating agreements with software developers, Web hosting providers, credit card payment processors and other service providers
• Counseling on the use of social media
• Providing general review and risk analysis of Web sites and drafting consumer-facing agreements and privacy policies
• Counseling on electronic payment, gift card, loyalty, rebate and points programs, and negotiating agreements with related service providers
• Counseling on tax obligations and jurisdictional issues

Contests and sweepstakes are popular promotional devices. Few companies, however, are aware of the many state, federal and international laws, rules and regulations that apply to such promotions. Our Promotions group advises food and beverage clients on planning, administering and operating legally compliant sweepstakes and contests. We provide in-house legal and marketing teams with the tools needed to better plan for and execute promotions. We advise clients on:

• Elements of illegal lotteries and illegal promotions
• Drafting official rules and other promotion documents
• Entry forms
• Registration and bonding requirements
• Third-party sponsored promotions
• International issues
• Record-keeping requirements

Federal laws and regulations impose stringent requirements on the safety of food from farm to fork as well as on format and content of information that must be included on food and beverage packages, including ingredients, nutritional information, allergens, and much more. Manufacturer claims regarding nutritional content and health benefits of their products—to help their products stand out in the marketplace—may also be scrutinized by government regulators and consumer lawyers.

Our food regulatory lawyers can help navigate the breadth of complex requirements for food, beverage, and dietary supplement products, providing advice regarding:

• Permissible ingredients.
• Packaging.
• Labeling requirements.
• Manufacturing and handling facilities.
• Supply chain.
• Inspections.
• Government enforcement actions.
• Recalls and crisis management.
• FDA Food Safety Modernization Act (FSMA).
• Import and export.
• FDA warning letters and USDA Notices of Intended Enforcement.
• FDA GRAS notification and self-GRAS strategy and preparation.
• USDA new technology reviews.
• USDA Food Safety and Inspection Service (FSIS) ingredient suitability assessments.
• New dietary ingredient notification preparation and submission.

Federal regulations are continuously adapting as new technologies are developed in the food space. Our food regulatory lawyers have extensive experience in developing strategies to commercialize a range of food tech innovations, including transgenic crops and alternative proteins, like plant-based meat analogues; cultivated meat; and fermentation-derived dairy (and other) ingredients. Our team includes a former regulator at the U.S. Department of Agriculture (USDA), whose experience and key relationships with decision-makers allows us to counsel clients on strategic considerations around engagement with and advocacy before USDA and U.S. Food and Drug Administration (FDA) on numerous complex issues, including those of first impression. Our lawyers advise clients on matters such as research and development (R&D) and commercialization on all areas of regulatory concern and collaborate seamlessly with our Perkins Coie colleagues to assist you in parallel with related intellectual property (IP), trade secrets, corporate financing, advertising, and more as a full-service international practice.

We have provided strategic regulatory counseling to facilitate commercialization of various food tech innovations, such as:

• Cultivated meat.
• Precision fermentation.
• Molecular farming.
• Sugar reduction.

Our team provides strategic advice to national retailers on USDA's Supplemental Nutrition Assistance Program (SNAP) and Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). Our lawyers also counsel clients on the HHS Temporary Assistance for Needy Families (TANF) program requirements regarding the sale of food and beverage products, including special program requirements for online retailers.

Recent experience in this area includes:

• Providing tailored guidance on obtaining SNAP equal treatment waivers.
• Undertaking a 50-state survey of state-level TANF Cash EBT sales restrictions.
• Assessing WIC policies regarding recalled food products.

Our Real Estate attorneys work with food and beverage companies on the acquisition and disposition of real estate, leasing, development and construction of manufacturing facilities and retail stores across the country. We also frequently advise clients on the environmental aspects of these types of commercial and real estate transactions. We work with clients to obtain federal, state and local permits for new and existing facilities. We also advise clients on regulatory and permit compliance issues. We conduct environmental audits and help clients to develop and implement environmental compliance management systems.

Perkins Coie’s litigation team advises or represents startups as well as national and international companies and manufacturers regarding consumer class actions and product liability risks. We provide clients with:

• Representation in consumer class actions alleging misbranding, advertising claims and nutrient claims
• Counseling on product liability containment and lawsuit avoidance
• Risk management consulting on advertising and labeling programs
• Audits to help our clients identify and eliminate potential product liability exposure
• Recalls
• Customized product liability and risk control workshops to help educate managers and employees regarding product liability law and exposure

The consumer products industry has been ground zero for an expensive wave of class action wage-hour litigation. Our Labor attorneys regularly counsel food and beverage companies on a variety of issues including day-to-day employment matters and the defense of aggressive class action litigation.  We have advised and defended food and beverage clients on a number of issues relevant to their businesses, including equal employment law, wrongful termination disputes, wage and hour matters, ADA compliance, employer policy manuals, and nondisclosure and noncompetition agreements. We also have considerable experience dealing with traditional labor issues and union-avoidance counseling.