George Washington University Law Professor John Banzhaf has issued a press release highlighting recent action the Food and Drug Administration took against a food company that purportedly misbrands one of its products by declaring it “All Natural” while making the product with a synthetic chemical preservative ingredient. According to Banzhaf, the agency’s warning letter is “likely to lend support to and encourage an ever-growing number of major class action law suits being filed on these grounds, says the public interest law professor whose earlier movement to use legal action as a weapon against obesity apparently inspired these new legal actions.”
He claims that The American Lawyer recognized how he started this litigation movement, noting in an article that he used the courts to address obesity, “just as he had earlier done in leading the use of legal action as a weapon against smoking.” Banzhaf further states, “The movement which Banzhaf started has now resulted in at least ten successful fat law suits which have forced food companies to fork out more than $20 million and make major changes in the way their products are advertised, promoted, and sold. ‘The newer “natural” law suits should force companies to think twice before simply slapping an “all natural” label on their products and their advertising, seeking to take advantage of vagueness in the definition of the world “natural,” and in the hopes that people will be tricked into thinking that an “all natural” product is safer or healthier,’ says Banzhaf.”
Banzhaf suggests that lawsuits challenging “all natural” labeling are easy to win because (i) “plaintiffs may not necessarily have to show that the claim is expressly false, and/or that some identified people were in fact mislead to their detriment”; (ii) judgments are based “not on the brightest and most educated consumer, but rather on those who, because they may not be quite as smart or as educated, may be deceived by the wording”; and (iii) consumers cannot verify whether a product is actually “natural,” thus “the burden to avoid misrepresentation by properly labeling its product must be on the advertiser.” See Press Release of John Banzhaf, December 7, 2011.