Food and Drugs

Food and Drugs

Anyone who had to read The Jungle by Upton Sinclair in high school was probably shocked and horrified at the depiction of meat production a century ago. In fact, Sinclair, who had intended to bring attention to the plight of immigrant workers, famously remarked, “I aimed at the public’s heart and by accident I hit it in the stomach” (Greenspan). Sinclair’s depiction of the stockyards and slaughterhouses was disgusting, and it brought to the public’s attention that it was possible they were eating some combination of toxic chemicals, rat droppings, dirt, and rotten meat. This eventually sparked changes in the food industry that were long needed.

The U.S. Department of Agriculture conducted the original investigation, upon which it claimed that Sinclair was lying and exaggerating. President Teddy Roosevelt secretly sent in other people for a more truthful investigation. After finding that Sinclair’s claims were in fact mostly true, and meat was being produced in filthy conditions, Congress passed the Pure Food and Drug Act and the Meat Inspection Act in 1906. This was the start of consumer protection in the food industry.

The Food and Drug Administration (FDA) is part of the US Department of Health and Human Services. The areas the FDA regulates are:

• Food
• Drugs
• Medical Devices
• Radiation-Emitting Products
• Vaccines, Blood, and Biologics
• Animal and Veterinary
• Cosmetics
• Tobacco Products

Perhaps one of the most important public services the FDA provides is a list of recalled products. The FDA is a massive agency and has lots of job opportunities. To see their career page, click here.

Food and Drug Administration law (FDA law) is intended to make consumers safer by providing information and through regulations. The FDA relies on the authority of commerce clause of the US Constitution to regulate commercial activities between states, which includes sales of food and drugs.

Education and Background:

If you have a background in medicine, science, or a related field, this may be useful. Do not be intimidated if you do not have such a background, however. The best thing you can do if you think you want to become an FDA lawyer is to obtain one of their summer internships for second-year law students (these are paid!).

Getting a job:

Food, drugs, medical devices, cosmetics, etc. make up a huge portion of our economy. Thus, when regulating the sale of these goods is concerned, there is a great demand for lawyers to protect companies from violations of the FDA laws and to help ensure future compliance. FDA lawyers may work for firms that advise companies and litigate for them when necessary. Or, they may work directly for the companies themselves. Many large food and drug manufacturers hire in-house FDA lawyers, as do large medical device companies. Some FDA lawyers work as lobbyists for food and drug companies.

Of course, there are many opportunities within the FDA itself. These lawyers might investigate and enforce regulations or they may help to create new regulations. For more information about attorney positions with the FDA, visit this page.

This is usually not an area where lawyers choose to work by themselves or for a small firm. This is an area of law that has steady business because the industry is so huge; it is also not likely to go away or shrink in size anytime soon, so it is a “safe” area of law.

Average salary:

How much you make depends in large part whether you are working for the FDA or against them. Salaries will also vary widely depending on the size of the company if you are working as in-house counsel.

Consider whether these articles interest you:

FDA notifies four companies to remove 44 flavored e-liquid and hookah tobacco products from the market for not having required marketing authorization (FDA News Release)

“Today, the U.S. Food and Drug Administration issued warning letters notifying four companies that 44 flavored e-liquid and hookah tobacco products do not have the required marketing authorization, and thus cannot be legally sold in the United States. These new actions are part of the FDA’s ongoing, aggressive effort to investigate and take action against illegally marketed tobacco products amid the epidemic of youth e-cigarette use in America.” Read more

FDA clears new indications for existing Lyme disease tests that may help streamline diagnoses (FDA News Release)

“Today, the U.S. Food and Drug Administration cleared for marketing four previously cleared tests with new indications to aid in the diagnosis of Lyme disease. The tests cleared today are the first time that a test has been indicated to follow a new testing paradigm in which two tests called enzyme immunoassays (EIA) are run concurrently or sequentially, rather than the current two-step process in which a separate protein test called a Western Blot must be run after the initial EIA test.” Read more

FDA suspends facility registration of Texas-based seafood producer after significant, repeated food safety violations (FDA News Release)

“The U.S. Food and Drug Administration today announced it has recently suspended the food facility registration of Topway Enterprises Inc., also doing business as Kazy’s Gourmet, of Houston, Texas. Topway now cannot sell or distribute any food into commerce. This action follows inspections conducted by the FDA and Texas Department of State Health Services (DSHS) earlier this year where serious sanitation issues were observed, including several samples confirming the presence of Listeria and pathogenic Listeria monocytogenes (L. monocytogenes).” Read more

Conclusion:

If you have a passion for protecting consumers from unsafe foods, drugs, and medical devices, this area of law is for you. Read The Jungle for a better understanding of the importance of food safety laws.

Franchise Law

Franchises are run by independent business owners who legally use a franchiser company’s secrets and intellectual property to make the business look like other franchise locations across the country. The franchisee pays the franchisor, and the franchisor has significant control over the way business is conducted. In return, the franchisee can open a business that has already been proven very successful and that customers know by name. Many large restaurant chains are franchised, for example. This is a great way for a company to grow without actually having to operate across the country. Ultimately, it is up to the individual business owner to make their location successful.

There are federal laws and regulations, state laws, and common laws related to the franchising process that franchise lawyers deal with. Franchise lawyers help their clients navigate complex business issues. There are many business-related areas that franchise lawyers must know, such as contract law and employment law. The FTC implements federal franchise laws. For more information about the FTC, see consumer law.

Franchise lawyers should be skilled at alternative dispute resolution because many business owners prefer not to litigate franchise matters.

Education and Background:

A background in business or any business-related area (such as marketing, accounting, finance, or economics) may be helpful because it means you are already used to working with businesses. However, any background will allow you to succeed at franchise law so long as you like to read and write — you will need to have an expansive knowledge of all of the rules and regulations concerning franchises and be able to properly advise franchisors and franchisees about these matters.

Getting a job:

Large franchises often employ in-house counsel rather than get help from a law firm. Those who work for law firms primarily represent the franchisee. Franchise lawyers may also work for the government to enforce regulations. For information about why it is better to get a job in-house, read this article titled “Mamas, Don’t Let Your Babies Grow Up to Be Franchise Lawyers.”

Average salary:

A franchise salaries survey revealed that for franchise legal services, the average professional is making $102,822 (Johnson).

Would you like this practice area?

Perhaps one of the best things about franchise law is that you get to know your client’s industry very well. You also get to practice a wide variety of business-related areas and help your clients with a wide variety of different issues. You know that you are helping protect the rights of business owners who contribute a lot to our economy, which is a great feeling. This is a very collaborative environment, so while you should be good at negotiating, this is not the area of law to go into if you want aggressive debate and constant pressure from the other side. Overall, if you are looking for a well-rounded area of law, franchise law might be right for you.

Consider whether these articles interest you:

Legal Considerations for Franchisors Expanding into Inner-City Markets (Daigle and Iacovino)

“Franchising as a business model largely originated in the suburbs, with companies selling franchises for units to be opened in strip malls, shopping centers, and retail plazas throughout the United States. As markets became saturated, competition grew, and demographics changed, franchisors started exploring new opportunities for growth, which involved considering or reconsidering those inner-city markets that might initially have been thought to be too expensive, too office-focused, too non-traditional, or just too risky.” Read more

The Economic Loss Doctrine: Getting Rid of the Surplusage in Franchise Case Complaints (Sallis)

“Your franchisor client has paid good money for a franchise agreement that expressly and exhaustively defines its rights and obligations and limits its exposure to damages in the event of a breach. A dispute arises under the agreement, and the franchisee sues. Despite the contractual nature of the dispute, you find yourself staring at a bevy of tort claims supposedly arising from your client’s failure to perform under the contract. Worse yet, the complaint seeks not only consequential damages but punitive damages. There may be a doctrine for that.” Read more

Injunctive Relief Pending Arbitration: The Evolving Role of Judicial Action (Conwell, Howard, and Mullin)

“From a franchisor’s perspective, arbitration is a popular means of resolving franchise disputes for many reasons. First, because of the initial cost of filing an arbitration demand, arbitration may serve as a deterrent to legal action. Second, an agreement stating that arbitration must be conducted on an “individual” basis and may not be combined with other franchisee claims is likely to deter collective action by franchisees. Individual arbitration makes it harder to assert and prove claims that the franchisor engaged in a pattern of misconduct or that it treated franchisees differently, which are the types of claims likely to increase the scope of discovery, disrupt the franchise system, and influence arbitrator opinion.” Read more

Conclusion:

Franchise law provides a unique way to help business owners while practicing a well-rounded profession.

Gaming Law

Gaming has always been a great way for states to bring in some extra revenue. Are you picturing a noisy, windowless casino with flashing lights and $$$? Well, with the advance of technology, online gaming has also become increasingly popular. However, there are some “gray” areas in the law, and this practice area is constantly changing as technology gets better and better and as politicians craft new legislation concerning gaming. Traditionally, gaming lawyers worked with racetracks, lotteries, and casinos on matters pertaining to gaming operations. What would you do if you wanted to go open a casino down the street? Probably consult a gaming lawyer immediately! If a lawyer chooses to focus on online gaming, however, he or she is certainly in for a bumpy ride as laws constantly shift. Over the next few years, however, expect this to be a growing industry that both boosts the economy and brings with it the need for more gaming attorneys.

For an example of what a gaming attorney might do, see this example from Ifrah Law:

“Jeff Ifrah and his team advise online casino operators, poker and fantasy sports sites, and payment processors on class action lawsuits, mergers and acquisitions, vendor and supplier issues, government investigations and criminal matters. We also serve as Special Internet Counsel for the Delaware State Lottery. The firm is known for representing clients in cases involving progressive areas of the gaming industry, such as sports betting, social gaming, skins betting, iGaming, online sweepstakes and lotteries, peer-to-peer betting and mobile gaming” (Online Gaming & Sports Betting).

If this interests you, read on!

Education and Background:

Not surprisingly, the University of Nevada, Las Vegas has a gaming program at their William S. Boyd School of Law. It is also, “the only program of its kind offering an LL.M. in Gaming Law and Regulation covering topics in lottery, gaming regulation, sports betting, licensing, employment relations, zoning and other areas” (LL.M. in Gaming Law Program).

Not attending UNLV? The University of New Hampshire Franklin Pierce School of Law offers an online course to get a certificate in Sports Wagering & Integrity. This is a great option whether or not you already have a law degree. Here’s what their website says: “Our flexible, five-course online program is designed for working professionals, including practicing lawyers, gaming industry professionals, sports industry professionals, lawmakers and regulators, and anyone interested in a career in sports gaming. B.A. is required. You do not need to apply to law school or have a legal background” (Sports Wagering & Integrity Certificate). If you already have a law degree and want to segway into a career of online sports gambling law, this may be a simple solution.

Having a background in gaming may help you understand this area of law better than the average person, especially if you are skilled with technology. A background in gaming is also sure to make this a more enjoyable area of law to practice.

Getting a job:

UNLV William S. Boyd School of Law lists several potential career options (Careers in Gaming Law: an Overview). These are extremely helpful to consider for anyone thinking of going into gaming law. Visit their website for more information, but here is a summary of the opportunities available:

• Working for a casino as in-house counsel
  • A traditionalist handles day-to-day legal responsibilities for the whole casino
  • A specialist takes care of one important aspect for a large casino
  • A compliance/regulatory counsel takes care of government relations
  • Or, you can use a legal background to simply further a business or management role with a casino
• Working for a gaming company
• Working for a state government
  • The Governor’s office
  • State regulators; state/local legislatures
  • The Attorney General’s office
• Working for a law firm
  • Outside counsel
  • Lobbyist
• Native American Gaming Attorney

The gaming industry contributes $261 billion to the US economy and supports nearly 1.8 million jobs across the country (American Gaming Association). Looking at a chart of consumer spending on casino gaming alone shows a steady increase over the past 15 years, and that doesn’t take into account the rocket growth of online gaming. Thus, it is safe to guess that the number of gaming attorney jobs will increase as the industry keeps growing.

Average salary:

Varies widely based on the type of gaming law practiced.

Would you like this practice area?

Strengths/Weaknesses: Do you perform well under extreme pressure? Are you good at adapting to rapidly evolving situations? Are you good with technology and have a strong understanding of how gaming works? Great! Work better in a less dynamic, calmer environment? Are you what your friends call “old-fashioned”? This might not be the area for you.

Likes/Dislikes: You must enjoy working in a fast-paced environment and having your hobbies overlap with your job. You must enjoy industry research, as you will have to spend a great deal of your time keeping up with changes in gaming. If you don’t want to deal with time difference problems, this might not be the area for you since many clients are overseas. Learning new skills also needs to be one of your favorite things.

Consider whether these articles interest you:

New Hampshire Federal Judge Rules Wire Act Only Applies to Sports Betting – Now What? (Haggerty)

“On June 3, 2019, Judge Paul Barbadoro for the District of New Hampshire concluded in a 63-page Memorandum Opinion that the purview of the Wire Act is limited to sports wagering.  The effect of the Court’s opinion, however, may be limited in states other than New Hampshire. After determining that the plaintiffs in the case, the New Hampshire Lottery Commission and NeoPollard Interactive LLC, new Hampshire’s iLottery vendor, have standing to challenge the DOJ’s 2018 Wire Act Opinion because they have established a threat of imminent injury, the Court addresses whether the Wire Act applies beyond sports wagering.” Read more

Will Louisiana Be the Next Southern State to Permit Sports Wagering? (Duncan and Shepherd)

“The 2019 session of the Louisiana Legislature began on April 8. Senator Danny Martiny (R-Metairie) has pre-filed a bill which would authorize sports betting on a parish-by-parish basis in the same way that daily fantasy sports (DFS) was legalized last year. Even though the Louisiana Senate Judiciary B Committee was the only place in the Louisiana Legislature where sports wagering received a positive vote in 2018, things may be different this year. Why? First of all, the US Supreme Court opened the door when it struck down the Professional and Amateur Sports Protection Act in May 2018…” Read more

An Epic Fail: Complaint Against Fortnite Creator Based on Facts as Stale as Fruitcake (Kardell)

“Parents can get angry when their kids spend too much time or money on video games. We get it. But going after a gaming company in retaliation is probably not the best response. And doing so without actually understanding the game can result in, well, a giant waste of time, or, in a recent example, an epic fail. Last week, an angry parent filed a putative class action in California federal court against Epic Games, Inc., the maker of Fortnite. In the complaint, the angry parent alleges that the company has unfairly and deceptively lured young players into buying random features to advance in the game. The angry parent claims that Epic has developed a “predatory scheme.”” Read more

Online Gaming Attorney Spotlight:

Jeff Ifrah, the founding member of Ifrah Law, is renowned as an expert on gaming law. He especially enjoys advising start-ups and says it is great to be “business-oriented”.

Jeff’s interview:

Q: How long have you been a lawyer?

A:  27 years

Q: Where did you go to law school?

A:  Benjamin N. Cardozo School of Law

Q: In what practice area(s) do you practice?  If more than one, what’s the percentage of each?

A:  50% white collar matters; 50% related to gaming

Q: What size is your firm?

A:  11 lawyers plus some support staff

Q: Describe an average day at work…

A:  Usually in the early mornings I spend about two hours trying to catch up on news of the day in the industry. We have lots of legal resources and periodicals to read (and I use google alerts); I read blogs; I focus on white collar litigation and gaming news; and we post a blog too, so I work on that for a bit. After that, I try to catch up with what everyone in the office is working on and make sure things are going well and answer questions. We meet twice as a week as a firm so that everyone knows what is going on for all of the cases even those that they are not specifically working on. Currently, we have about 25 cases from across 15 states, and it’s all federal litigation. I review the docket sheet for each of the cases, and then I create tasks and assignments from those. Phone calls usually start around 9 am – they could be from opposing counsel, the court, regulaters, or new matters. For new matters, clients generally reach out to me, but then I refer them to the client manager.

Q: Do you deal with difficult people?

A:  Sometimes the other side can be difficult if there is a communication issue. I try not to take litigation cases personally though and just say, “I view it differently than you do”.

Q: What makes your day-to-day work different from that in other practice areas?

A:  I worked in a big firm for years, and it is very easy to get siloed into the office, not part of a strong team and not interacting as much with others. In our office, we all work together. For gaming, we get to deal with a lot of startup clients as well as lots of clients from Europe (although more gaming companies are moving to the US as it becomes increasingly legal). Each person at the firm specializes in certain aspects of the gaming law. No matter how young someone is, they get to interact with clients, which is certainly not the case with big firms.

Q: What do you like most about your job/practice area?

A:  I get to be business-oriented. I can help with a company’s business strategy as well as representing them in court.

Q: You would be a happy and successful gaming lawyer if you…

A:  … like technology, new frontiers, and participating and growing with a company.

Q: What advice would you give students interested in learning more about being an online gaming lawyer?

A:  A lot of people like sports, poker, video games, etc. When you’re an online gaming lawyer, your two worlds kind of collide. You’re personal and professional life are intertwined. Your hobby is now your job. It gives you a bit of an edge when something you like doing on a Sunday is something your clients do every day. It will help you understand what your client is thinking.

Q: What other comments do you have to add about your practice area?

A: You get to work with a fun topic and people who are fun. You get to work in an ever-changing environment, so you should like learning new skills.

There are lots of opportunities unique to the internet that are just starting up and finding a place. Back in the 90s, people would have laughed at you if you said more would be bought online than in-store. They would have laughed to think you would use a computer for anything more than computer programming and computer research. You’ve got to be a pioneer.

– Jeff Ifrah

Gaming Attorney Spotlight:

Gregory Giordano works for McDonald Carano practicing gaming law. He says if you enjoy being regularly busy representing gaming clients with respect to obtaining regulatory licenses and approvals and assisting them with regulatory compliance, you will be a happy and successful gaming lawyer.

Greg’s Interview:

Q: How long have you been a lawyer?

A: 37 years

Q: Where did you go to law school?

A: Santa Clara University School of Law

Q: What size is your firm?

A: 50 attorneys

Q: Describe an average day at work…

A: Gaming law varies a lot. Generally, you get questions from clients on interpretation and application of gaming law. Then there’s working on gaming applications and reviewing them. I deal with gaming regulators a lot and talk on the phone with clients a lot. Sometimes I attend gaming meetings with a gaming commission.

Q: Do you go to court?

A: Never; I haven’t been in a courtroom since 1985! That’s pretty typical for gaming lawyers; we pretty much practice administrative law.

Q: What makes your day-to-day work different from that in other practice areas?

A: Well, I never do any of the kind of stuff a litigator does. It’s more like administrative and transactional law. You don’t have to be really aggressive or confrontational. It’s a much more cooperative area of the law. You are trying to facilitate and be a deal-worker. You’re not really adversarial per se. There are also very few emotional situations. A client gets upset once in a while, but it is rare.

Q: Did you practice in any other practice areas before deciding on this one?  If so, which one(s)?

A: I was a general practitioner when I first started out, then a government lawyer and a gaming regulator.

Q: How many hours a week do you typically work?

A: 50 hours a week

Q: What advice would you give students interested in learning more about being a lawyer in your practice area?

A: Well, you can read a lot! Learn about it from working for an attorney who does it, or better yet go to work for a regulator and work your way up. Or, go work for the attorney general’s office with people who provide advice to regulators.

Q: What other comments do you have to add about your practice area?

A: I really enjoy it and think it is gratifying. Personal integrity is very important. If the regulators don’t trust you, you are worthless to the clients.

I’m helping people realize dreams, I’m a facilitator, I’m helping people with businesses, and I’m helping the US economy. It’s great. I also don’t have to go to court and deal with all that!

– Gregory Giordano

Conclusion:

To work in gaming law, you should be the type of person who gets a thrill from a constantly changing environment. You should have an extensive understanding of the industry and enjoy both high-pressure situations and cooperating with others.