False advertising claims involving uses of the term “natural” have spanned the skincare, hair care, cleaning products, and food industries. Two recently filed class-action complaints target use of this designation for popular beverages.

In Lenora Rice, et al v. National Beverage Corporation (Circuit Court of Cook County, 2018CH12302, Oct. 1, 2018), a case recently filed in Illinois state court, Plaintiff Lenora Rice accuses National Beverage of using unnatural flavorings and synthetic compounds in its popular LaCroix sparking waters, in alleged contradiction to its “all natural” and “100% natural” advertising claims. In particular, Rice claims that National Beverage’s LaCroix beverages contain chemical compounds recognized as synthetic or artificial by the Food and Drug Administration (“FDA”). Rice contends that advertising products containing these ingredients as “natural” violates the Illinois Consumer Fraud Act and National Beverage’s express warranties to consumers. National Beverage has not yet answered the complaint.

In Kevin Branca v. Bai Brands, LLC (S.D. Cal. Apr. 19, 2018), filed earlier this year in the Southern District of California, Plaintiff Kevin Branca challenges Bai’s use of the designation “with other natural flavors,” imagery of ripe fresh fruit, and product names like “Malawi Mango” and “Brasilia Blueberry” in connection with BAI beverages. In asserting violations of California false advertising and other consumer protection laws, Branca alleges that Bai’s conduct creates the false impression that its beverages contain natural ingredients only, when in fact they contain malic acid and d-1-malic acid, chemicals plaintiff contends are not naturally occurring. Bai’s motion to dismiss and motion for sanctions remain pending.

In November 2015, the FDA established “a docket to receive information and comments on the use of the term ‘natural’ in the labeling of human food products, including foods that are genetically engineered or contain ingredients produced through the use of genetic engineering.” Use of the Term “Natural” in the Labeling of Human Food Products; Request for Information and Comments, 80 Fed. Reg. 69905-01, 2015 WL 6958210 (proposed Nov. 15, 2015) (to be codified at 21 C.F.R. pt. 101).

Among other things, the FDA solicited comments and proposals addressing: (1) the type(s) of ingredients that would disqualify use of the designation “natural”; (2) whether the manner in which an ingredient is produced or sourced should affect use of “natural”; (3) whether certain production practices should be considered when designating “natural” food products; and (4) whether the term “natural” should apply to “unprocessed” foods only, and, if so, how “unprocessed” foods should be defined.

The FDA’s notice-and-comment period ended in May of 2016. See U.S. Food & Drug Administration: “Natural” on Food Labeling, available here. But it has yet to issue its guidance.

While awaiting FDA guidance, some courts have deferred rulings on permissible uses of the designation “natural” for food and beverage products. See, e.g., Scholder v. Riviana Foods Inc., No. 16-cv-6002(ADS)(AKT), 2017 WL 2773586, at *2-3 (E.D.N.Y. Jun. 23, 2017) (internal quotations omitted) (Court held that “natural” food labeling is within the FDA’s discretion, and that awaiting FDA guidance on the issue “would almost certainly help harmonize court rulings,” which is important because “Congress [did] not want to allow states to impose disclosure requirements of their own on packaged food products, most of which are sold nationwide in order to avoid the need for [m]anufacturers . . . to print 50 different labels.”).

With some courts reluctant to weigh in on the use of “natural” absent FDA guidance, food manufacturers continue to face uncertainty and potentially costly litigation when advertising their food/beverage products as “natural.”