In 2012, a handful of lawsuits arose against food and beverage manufacturers attacking “all natural” claims on product packaging labels. In 2013, that trend exploded with new cases seemingly filed daily. Now, as we venture into 2014, what is on the horizon? This post is the first in a multi-part series that will examine the current food labeling litigation trends and the possible results from these consumer claims.
As organic producers, processors, and retailers know, “organic” product labeling is subject to a myriad of regulatory requirements under the USDA’s National Organic Program. So to start with, let’s recognize that “all natural” claims are a very different beast. As the FDA put it:
From a food science perspective, it is difficult to define a food product that is ‘natural’ because the food has probably been processed and is no longer the product of the earth. That said, FDA has not developed a definition for use of the term natural or its derivatives. However, the agency has not objected to the use of the term if the food does not contain added color, artificial flavors, or synthetic substances.
Put simply, neither the FDA nor the USDA have adopted regulations which specifically define what “all natural” means. So, from a regulatory standpoint, it is every producer for himself. No one may rely on the fact that their product labeling comports with federal regulations and is, therefore, immune from state law based claims. That said, a study recently released by the Shelton Group found that consumers most want to see “100 percent natural” or “all natural” on their food choice labels. According to Rachel Saks, co-founder of the Brooklyn-based nutrition consulting company tABLE health, for her health-conscious clients, natural “means whatever they want it to mean.” As a result, food companies very much want to utilize the “all natural” label on their products.
This is a problem, right? Everyone wants to buy foods that are “all natural” but no onereally knows what that means, so naturally (excuse the pun) we end up with disputes (we call it “litigation”) as to what an “all natural” product means. And let’s be blunt, litigation isn’t really the best way to decide the definition of a food labeling term.
Neither the FDA nor the USDA have rules defining what “natural” means, but they’ve given us some hints. The FDA is cool with “all natural” claims regarding food that doesn’t contain “added color, artificial flavors, or synthetic substances.” The USDA doesn’t object to “all natural” claims with respect to meat and poultry labeling so long as the product contains “no artificial ingredient or added color and is only minimally processed. Minimal processing means that the product was processed in a manner that does not fundamentally alter the product.” The Food, Drug, and Cosmetic Act prohibits labeling that is false or misleading, but does not go into any more detail on how to determine what is false or misleading.
So here we are. Foods are labeled “all natural” with no regulatory definition as to what that means. Consumers bring class action lawsuits alleging violations of state consumer protection laws if the products contain ingredients that are artificial, synthetic, bioengineered, highly processed or “unnatural” for other reasons. The organic industry has a legitimate reason to worry that “certified organic” not be watered down by “all natural” labeling claims. Conventional agriculture is reasonably concerned with state law initiatives that would require identification of ”GMO” or “non-GMO” component ingredients. Wow, what a mess. Along with the courts and others, we will try to sort this out and identify what the issues really are and how they are likely to be resolved.