On April 12, 2016, the Federal Trade Commission announced a package of four settlements and one lawsuit against the marketers of sunscreen, body lotion and hair care products. Each of these matters was brought in the FTC’s administrative forum and allege a single count: that the products could not be considered all natural because each product contained at least one synthetic ingredient.
The companies – ABS Consumer Products, Beyond Coastal, California Naturel, The Erickson Marketing Group Inc., and Trans-India Products, Inc. – focused their marketing claims on the products’ ingredients found in nature. Claims including “all natural,” “100% natural” and “only the purest, most luxurious and effective ingredients found in nature,” were made for ingredients such as Vitamin C, Shea Butter, Pomegranate extract, Marigold Flower extract, Aloe Vera, Wheatgerm, Apricot, Borage or Coconut oil. While the products appear to have contained such ingredients, they could not be labeled as all natural because, according to the FTC, they also contained items such as Dimethicone, Caprylyl Glycol, Polyethylene, Butyloctyl Salicylate, Neopentyl Glycol Diethylhexanoate, or Ethylhexyl Glycerin.
Four of the companies involved settled with the FTC. In identical agreements, the companies promised not to claim - expressly or by implication - in connection with the marketing of any product, including through the use of a product name, trademark or trade name:
- whether such products are “all natural” or “100% natural”;
- the extent to which such products contain any natural or synthetic ingredient or component;
- the ingredients or composition of such products; or
- the environmental or health benefits of such products,
unless the claim is non-misleading. The consent agreements require the companies to possess and rely upon competent and reliable evidence to establish any “natural,” ingredient, environmental or health claims made in the future. At a minimum, these agreements will be in effect for the next 20 years. The fifth company involved, California Naturel, is engaged in litigation with the FTC.
Key takeaways from these cases:
- Do not refer to your products as “all natural” or “100% natural” unless they contain no synthetic ingredients. This is as true for product or trade names as it is for claims made in advertisements.
- Exercise caution in using the term “natural.” While these cases involved claims that the products were 100% natural, there has been a spate of consumer litigation involving more minimal “natural” claims.
Under the Food and Drug Administration’s longstanding policy, the agency has construed the term “natural” to mean that nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in that food. The FDA currently is accepting comments on this policy and seeking input on whether it is appropriate to define the term “natural” and if so, how, as well as how the agency should determine appropriate use of the term on food labels. The comment period closes May 10, 2016.