At its October annual conference, the National Advertising Division (NAD) of the Council of Better Business Bureaus (CBBB) featured a discussion on claims such as "natural" and "all-natural."1
Neither the Food and Drug Administration (FDA) nor the Federal Trade Commission (FTC) have issued a formal comprehensive definition of "natural."2 However, the FDA has stated that it will not object to the term "natural" for foods, if the food does not contain added color, artificial flavors, or synthetic substances.3 FDA has also defined "natural flavor or natural flavorings" as substances containing the flavoring constituents derived from specified items such as spices, fruits, vegetables, herbs, plant materials, meat, seafood, and eggs.4 The United States Department of Agriculture (USDA), on the other hand, defines "natural" meat and poultry as "product [s] containing no artificial ingredient or added color" and which are "only minimally processed [meaning that] … the product was processed in a manner that does not fundamentally alter the product."5
Based generally on the discussion at the NAD conference, advertisers might consider the following when making a "natural" claim:
- Do consumers expect any "artificial" ingredients to be included in the product?
A product that contains a limited number of artificial ingredients may still be able to bear "natural" claims if consumers expect the artificial ingredients to be present in the product and the remaining ingredients are considered "natural". However, the method to define consumer expectation has yet to be determined.
In August, a California district court6 refused to dismiss state law claims alleging that ice cream was falsely advertised as "all natural flavors", holding that a food may contain an artificial or synthetic substance even though it is promoted as "natural", only if consumers normally expect the artificial or synthetic substance to be present. The court reasoned that it cannot necessarily be demonstrated that consumers would not expect the alleged artificial ingredient, namely, cocoa alkalized with potassium carbonate, to be present in ice cream.
- Is the claim "clearly and conspicuously limited" by a qualifier?
Even if the "natural" designation is potentially misleading, NAD may nevertheless consider it truthful and non-misleading if a qualifying statement of equal, if not more prominence than the potentially misleading statement itself, immediately follows the claim. For example, NAD recently concluded that the claim "[s] unscreen for skin that prefers no chemicals", was truthful, accurate, and not misleading based partly on the subsequent claim that the active ingredients in the product, the minerals zinc oxide and titanium dioxide, are "derived from nature".
- Is the claim "natural" compatible with federal agency statements?
FDA has permitted "natural" claims for food that does not contain added color, artificial flavors, or synthetic substances7 and concedes that a "natural" claim for a food is more likely to require context-specific analysis. However, describing over-the-counter (OTC) sunscreen drug products using terms such as "non-chemical" and "chemical-free" is likely to be considered "unacceptable" because the ingredients in these products are obtained through chemical processes.8
- Does the claim comply with third party industry or other organizational standards?
Manufacturers seeking support for "natural" claims have also relied on industry standards such as those provided by the Natural Products Association (NPA) and by nonprofit testing organizations such as NSF International. NPA’s program, "Natural Standard and Certification for Personal Care Products", provides guidelines on "natural" claims for cosmetic products.