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Let's talk antitrust: Discussing recent cases and emerging competition issues
Recent cases and judgments have shone a light on some emerging themes and trends that companies will want to consider as part of their risk management framework.
Global | Publication | April 2018
The US Food and Drug Administration does not have much of a sense of humor when it comes to the mandatory ingredient list on packaged food products. Last month, the FDA issued a Warning Letter to the Nashoba Brook Bakery in Concord, Massachusetts, for, among other violations, listing “love” as an ingredient in its granola and whole wheat bread, in violation of 21 C.F.R. § 101.4(a)(1), which requires the label or labelling of a food to display a list of ingredients, “listed by common or usual name in descending order of predominance by weight on either the principal display panel or the information panel.” According to the FDA:
“‘Love’ is not a common or usual name of an ingredient, and is considered to be intervening material because it is not part of the common or usual name of the ingredient.”
Accordingly, it concluded that the products were misbranded under 21 U.S.C. § 343(i)(2), which sets forth the ingredient listing requirement.
It does not appear, however, that the FDA targeted this bakery solely for its creative labelling: an FDA inspection earlier this year found numerous serious violations of the Current Good Manufacturing Practice regulations, including failure to clean and sanitize equipment, staff wearing jewelry while working in direct contact with food, and “[o]ne approximately one inch long crawling insect underneath exposed ready-to-eat foods in the pastry area,” as well as other labelling violations. After being issued a listing of the FDA’s inspectional observations (FDA Form 483), the bakery provided no formal response to the FDA, triggering the Warning Letter.
This case serves as a warning that food companies should avoid creative license with ingredient lists, even when the reasonable consumer would clearly not expect the “ingredient”—in this case, love—to be in the product.
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Recent cases and judgments have shone a light on some emerging themes and trends that companies will want to consider as part of their risk management framework.
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After a lacklustre finish to 2022 when compared to the vintage year for M&A that was 2021, dealmakers expected 2023 to see the market continue to cool in most sectors, in response to the economic headwinds of rising inflation (with its corresponding impact on financing costs), declining market valuations, tightening regulatory scrutiny and increasing geopolitical tensions.
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On 18 September 2023, the CMA published its Initial Report (Initial Report) on AI Foundation Models (FM), supplemented in April 2024 with the publication of its “Update Paper” focused on potential antitrust risks associated with FMs and a “Technical Update Report” providing more detail on the development on FMs (collectively the “Reports”). Below, we consider these CMA publications.
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