In a surprising shift, the Food and Drug Administration has announced that it is soliciting public comments concerning how the term “natural” may be used in food labeling. As we reported in a January 2014 alert (available here), three federal judges had previously requested clarification from the FDA as to whether companies could use natural in describing genetically modified foods. The FDA refused the courts’ requests, noting that if it were to opine on that question, it would do so in a rulemaking or formal guidance. Nearly two years later, the FDA apparently regards the issue as ripe for rulemaking.
Companies (and individuals) are invited to submit comments on three issues:
- Whether it is appropriate to define the term natural.
- If so, how the agency should define natural.
- How the agency should determine appropriate use of the term on food labels.
In seeking comments, the FDA affirmed its “long-standing policy” that the term natural means that “nothing artificial or synthetic (including all color additives regardless of source)” has been included or added to a food. The FDA has not, however, addressed how the term relates to food production (such as the use of pesticides) or processing (such as irradiation or thermal technologies). It remains to be seen whether this process will result in a firm definition of natural. While any FDA rule is unlikely to eliminate all ambiguity, formal guidance from the agency should provide some clarity and reduce the number of class action lawsuits and competitor complaints relating to natural product labeling and advertising.
The FDA is accepting public comments from November 12, 2015, through February 10, 2016. Information and a link to submit comments electronically can be found on the FDA website at http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm456090.