While the Food and Drug Administration (FDA) is still considering whether to issue guidance over the use of the term “natural” in food products, the Federal Trade Commission (FTC) is steamrolling ahead this week with a flurry of settlements and a complaint over deceptive use of the terms “all natural” and “100% natural” in the advertising of sunscreens, shampoos, and other styling/beauty products. However, while there have been vigorous debates in the courts and elsewhere over whether natural ingredients must be non-GMO, and whether certain highly processed natural ingredients such as high fructose corn syrup qualify as “natural,” the FTC’s cases went after some low-hanging, not very natural, fruit. The FTC’s four proposed settlements and new administrative complaint over the use of the phrase “all natural” all involved products that appear to contain clearly synthetic ingredients. (In this regard the FTC’s actions parallel the warning letter FDA issued to Alexis Foods and their frozen potato product.)
The four proposed settlements are with Trans-India Products, Erickson Marketing Group, ABS Consumer Products, and Beyond Coastal.
Trans-India Products (d/b/a Shikai) advertised and offered for sale “All Natural Hand and Body Lotion” and “All Natural Moisturizing Shower Gel.” But the FTC found that the products contained synthetic ingredients including Ethylhexyl Glycerin and Phenoxyethanol.
Erickson Marketing Group (d/b/a/ Rocky Mountain Sunscreen) advertised and offered for sale “Face Stick SPF 60 All Natural Sunscreen” and “Face Stick SPF 60 Kids All Natural Sunscreen.” The company advertised the sunscreens as an “all natural formula.” However, the sunscreens contained the synthetic ingredients Dimethicone, Polyethylene, Butyloctyl Salicylate, and Neopentyl Glycol Diethylhexanoate.
ABS Consumer Products (d/b/a EDEN BodyWorks) advertised and offered for sale a number of specialty shampoos and conditioners as “All Natural.” The FTC took issue with this description because each of the products at issue contained at least one synthetic ingredient. For example, “Coconut Shea All Natural Curl Defining Cream” contained the synthetic ingredient Polyquaternium-7.
Beyond Coastal advertised and offered for sale its “Natural Sunscreen SPF 30” product as “Natural 100% natural sunscreen” on its webpage. The sunscreen, however, contained the synthetic ingredients Dimethicone and Caprylyl Glycol.
The administrative complaint filed by the FTC is similar. The FTC’s complaint alleges that California Naturel advertised its “Sunscreen SPF 30” product as an “all natural sunscreen” with “only the purest, most luxurious and effective ingredients found in nature.” However, the FTC alleges that the product contains Dimethicone, rendering the “all natural” claim deceptive. Hearings on these charges will begin on December 12, 2016, before an Administrative Law Judge.
Perhaps more intriguing is the nature of the agreed-upon injunctive relief. Rather than simply agreeing not to make “natural” claims for products that contain synthetic ingredients, the companies have more broadly agreed to not make unsubstantiated claims that their products are “natural.” Ironically, the FTC itself has previously declined to provide a definition of “natural” (48 F.R. 23270 1983) but these four companies are now required to not use the term in a misleading fashion and presumably figure out for themselves whether, for example, they have to use non-GMO plants in their natural lotions, gels, and sunscreens or risk violating the consent order.
While the FTC’s actions have not shed much light on some of the “grayer” areas of what it means for a product to be natural, these actions and the corresponding consent decrees and upcoming administrative hearing may add more impetus to calls for some type of regulatory definition of “natural” to emerge.