Everybody wants “clean” labels. But, what does that mean? With no legal definition, “clean” labeling encompasses a wide-range of claims, such as natural, healthy, -free, simple, small-batch, no preservatives, no artificial colors or flavors, made from nature, made from kitchen ingredients, and pasture-raised. Underlying the “clean” labeling movement, which was named Food Business News’ 2015 trend of the year, is consumers’ desire for increased trust and demand for transparency from food companies.
Many of the claims that fall under the “clean” label umbrella are not new, and some of those claims are already defined in regulations (e.g., healthy, artificial colors, artificial flavors, free from, rich in). Many, however, are not defined (e.g., natural, small-batch, made from kitchen ingredients). Whether or not the terms are defined in law, “clean” labeling claims, as a form of marketing and differentiation in the market, carry risk.
At the 2017 Clean Label Conference, the results of a recent study conducted by Euromonitor International were discussed. They revealed that consumers most often seek out products that contain “natural” claims. Labels with “natural” claims, however, come with the highest risk of litigation. A little over one-third of food labeling lawsuits currently pending are focused on use of the term “natural.” FDA has not formally defined the term “natural,” and this leaves the door open to consumer protection-based lawsuits claiming labels are deceptive or misleading. (Note: FDA recently sought comment on whether and how to define the term “natural.”)
Many of these lawsuits focus on the presence of ingredients that consumers might not consider natural (such as certain flavor ingredients). We’ve seen a new shift in direction, however, to a focus on process and production-related issues. For example, a few companies were recently sued on the basis that their “all-natural” label claims were misleading due to the presence of glyphosate residue in their products. Along these same lines, claims that a product is “100%” or “Pure” carries risk that the presence of chemical residue or another ingredient, even an ingredient that is permitted by the FDA to be in the product, may render the claim misleading.
Two other high-risk claims used in “clean” labeling are:
- The term “healthy” and terms and;
- Images that convey the message or implication that a product is healthy.
The term “healthy” is defined in the regulations as products that are low in total- and saturated-fat, low in cholesterol, and high in vitamins.
A number of “clean” label products use the term “healthy” on products that are higher in fat; these same products may market those fats as “good” or “healthy” fats. Although Kind, LLC was successful in pushing FDA to acknowledge that certain higher-fat products (e.g., that contain nuts) can contain healthy fats, FDA has not changed its regulations to allow the term on higher fat products. FDA may redefine the term “healthy,” but has not yet done so; therefore, using the term “healthy” on higher-fat products is a risky labeling decision.
Even if companies comply with the “healthy” regulations, recent lawsuits indicate that other claims may open up the company to litigation. A number of cereal companies whose products meet the requirements for the term “healthy,” which the labels conveyed, were sued on the theory that the sugar levels in those products were so high as to preclude use of the term “healthy.”
The bottom line is that labels must be truthful and not misleading, and compliance with federal labeling regulations does not guarantee protection from litigation. It behooves food and beverage companies, therefore, to carefully consider the claims made on their labels to determine whether that standard is met.