In a recent journal article, a Babson College marketing law professor discusses legal disputes over the labeling of food as “natural,” noting drawbacks of using courts as public policy developers on the issue. Ross D. Petty, “‘Natural’ Claims in Food Advertising: Policy Implications of Filling the Regulatory Void with Consumer Class Action Lawsuits,” Journal of Public Policy & Marketing, Spring 2015.
Petty provides a history of the debate and litigation over use of the terms “natural” and “unprocessed” on food labels, beginning with U.S. Federal Trade Commission (FTC) actions against Sugar in The Raw® and Hawaiian Punch® in the 1970s. The article also details efforts by the U.S. Food and Drug Administration (FDA) and Department of Agriculture (USDA) to define “natural,” “synthetic,” “healthy” and “good source.” Petty highlights industry self-regulation, such as the processes established by the National Advertising Division of the Council of Better Business Bureaus, as a venue for food companies to challenge their competitors’ “natural” claims.
He also discusses consumer class actions against food companies that label their products as “natural,” crediting Center for Science in the Public Interest with initiating the current surge of consumer class actions against food companies in the early 2000s after the organization petitioned FDA to take action against food mislabeling. The other catalyst, Petty argues, was likely the “Sugar Wars” that began when the Sugar Association and makers of Equal® sweetener sued the manufacturer of Splenda® for implying in its advertising that its sucralose product is “natural.”
Petty criticizes the use of consumer class actions to establish public policy, noting that the single strength of such use is that plaintiff’s attorneys are often willing to take on issues that legislatures, regulatory agencies and competitors in the food industry have ignored. He argues, however, that the weaknesses are myriad. Decisions in labeling class actions frequently focus on procedural issues rather than public policy issues, Petty notes, so many of the cases turn on whether FDA has primary jurisdiction or whether proposed class members can prove their membership, paid varying prices or hold differing beliefs about the definition of “natural.” Further, judges in trial courts do not typically have any food, advertising or consumer behavior expertise, and perhaps most importantly, Petty argues, the courts are not bound to each other’s decisions and reach inconsistent results.
“Because no [consumer class actions] have been litigated to a judicial decision on the merits,” Petty states, “a great deal of resources have been expended in the past few years with little substantive progress toward determining when the word ‘natural’ should appropriately be used in food advertising and labeling.” Without regulatory guidance, he says, “natural” has become puffery that companies use without precision. Praising USDA’s approach to defining “organic,” Petty presses FDA and FTC to develop detailed regulations defining artificial ingredients and delineating what processing techniques are sufficiently minimal to be consistent with a “natural” claim. He criticizes the First Amendment implications of Consumer Reports’ proposed ban on “natural”claims and notes that such a prohibition would eliminate a simple claim that consumers value. Finally, Petty calls for more research into what consumers believe about a product with a “natural” claim and what language may be a suitable alternative for properly educating consumers.