In 1960, Judge Friendly famously began an opinion by asking, “What is chicken?” Today, the question is, “What is ‘natural’?”
Courts today are filled with cases claiming that foods labeled as “natural” are misleading because they contain chemical preservatives; genetically modified ingredients such as corn starch and canola oil; and such compounds as citric acid and ascorbic acid. At the same time, Vermont, Maine and Connecticut have passed legislation requiring that ingredients derived from genetically-modified sources be identified on product labels – legislation that has prompted some members of Congress to propose federal legislation prohibiting states from mandating GMO labeling.
Now the U.S. Food and Drug Administration has stepped into the debate.
On November 10, the FDA announced that it was soliciting public comments as to whether the agency should define the term “natural” and, if so, how the term should be defined and how appropriate use of the term on food labels should be determined. The FDA’s announcement was surprising, since the agency has long avoided defining the term. In January of 2014, for example, the FDA wrote to three federal judges who had stayed labeling litigation in their courts declining to determine whether food products containing genetically engineered ingredients could be labeled as “natural.” Without fully committing itself, the FDA seems to have decided that it either has to stake out a position or cede the field to Congress, the states or the courts.
Then, on November 19 (the same day it announced its approval of a particular genetically engineered salmon), the FDA issued draft industry guidance for labeling whether foods are or are not derived from genetically engineered plants. In its guidance, the agency went out of its way to take issue with the widely-used term “non-GMO” (or non-genetically modified organisms), noting that the term “genetically modified” encompasses a wide variety of alterations, including such longstanding methods as hybridization. Instead, the FDA proposed labeling foods as being “bioengineered” or “not genetically engineered” or containing ingredients “produced using modern biotechnology” to indicate whether ingredients were derived from plants altered through recombinant DNA technology. Importantly, the FDA’s guidance only addresses voluntary labeling; it does not require the disclosure of bioengineered ingredients – a win for many of the major food companies.
The FDA’s actions signal a willingness to wade into the “natural” labeling debate. Although it is unclear how the FDA will eventually come out on the issue (assuming that it decides to define “natural”), courts in the meantime are more likely to entertain motions to stay pending FDA action. The FDA’s stance may also alter the tug-of-war between Congress and the states over GMO labeling, since the FDA has signaled its view that by focusing on “GMO” labeling, the other parties are debating the wrong (or at least wrongly defined) issue.