A class action filed in California this month challenges the “100% Natural” claim on Celestial Seasonings’ teas on the basis of testing alleged to have revealed the presence of various pesticides and other toxic elements in the product. However, the case, Von Slomski v. Hain Celestial Group, Inc., 8:2013-CV-01757 (C.D.Cal.), appears to rest on a number of questionable assertions.
First, while the complaint alleges that these elements are present at excessive levels in violation of various food safety regulations, it also alleges that their mere presence – presumably at any level – renders the product “not natural” such that the “100% Natural” claim is false and misleading. The FDA has famously avoided defining what constitutes “natural,” but its informal guidance has suggested that a “natural” claim is appropriate only when “nothing artificial or synthetic…has been included in, or has been added to, a food that would not normally be expected to be in the food.” 58 FR 2302, 2407 (January 6, 1993). This begs the question: does the consuming public expect a “100% Natural” product to have been produced entirely without the aid of pesticides or insecticides? If not, is there not some nominal level of residue that could be present without rendering the product not natural? Plaintiffs make no allegations on consumer expectations.
Second, the complaint seems to be invoking USDA regulations that require products that make “organic” claims to have been produced without the use of various synthetic substances such as fertilizers and insecticides. However, those regulations do not concern the product’s final composition, but only the manner in which the ingredients were produced. Moreover, Hain Celestialdoes not make any “organic” claims.
Third, the complaint raises the question of what part of a product must be “100% Natural” to substantiate that claim. In addition to the testing it claims revealed these toxic elements in the dry tea, it also refers to alternative testing done by another laboratory (allegedly affiliated with Hain Celestial) that showed that there were no trace elements of any of these elements in the brewed tea itself. It thus could be that both tests were correct: the tea leaves themselves contain these elements, but the tea itself – the only part of the product the consumer consumes – does not. Which test is more “consumer relevant?” If the consumed portion of the product is all natural, but the packaging or other means of delivery is not, is the 100% Natural claim false?
Class action plaintiffs’ attorneys have proven themselves endlessly creative in finding new ways to exploit the uncertainty of what is considered a “natural” food or beverage. Advertisers must remain focused on the central question of consumer relevance: what do consumers expect to be in this particular product if it is “all natural”? Product testing, consumer surveys, and substantiation remain an advertiser’s best defenses even as the method of attack continues to shift.