FDA policy prohibits a food product from being labeled “natural” if it contains anything “artificial or synthetic (including all color additives regardless of source)” (56 FR 60421 at 60466, November 27, 1991). This definition, however, is currently under review by the FDA, and additional guidance on what the FDA deems “natural” is expected in the near future.
With the FDA’s review in mind, Judge Beth Freeman, at an August 6, 2020 hearing on Defendants’ motion to dismiss in Hawyuan Yu v. Dr. Pepper Snapple Group, Inc. and Mott’s, LLP (U.S.D.C., N.D. Cal.), thought it highly unlikely that a revised FDA definition of “natural” would be any more stringent than the USDA’s definition of “organic.” Per USDA organic, crop production standards, crop pests, weeds, and diseases must be controlled primarily through physical, mechanical, and biological controls. When these controls are not sufficient, the USDA permits the application of certain biological, botanical, or synthetic substances, including certain pesticides. At the August 6 hearing, Judge Freeman also explained that studies cited in the Plaintiff’s complaint did not convince her that the consumers’ perception of “natural” extended beyond the finished product on the shelves to the food production methods in the fields.
As background, Plaintiff Yu alleges that he and other similarly-situated consumers in California and nationwide were enticed to purchase several of Defendants’ applesauce and apple juice products at premium prices, based upon Defendants’ representations on their labeling and corporate websites that the products were free from unnatural ingredients, synthetic chemicals (in particular, trace levels of acetamiprid, a pesticide), and other remnants of artificial processing. Plaintiff alleges that Defendants violated California’s Consumers Legal Remedies Act (CA Civil Code § 1750, et seq.) and Business & Professions Code (§§ 17200, et seq. and §§ 17500, et seq.) and common law by labeling and advertising “natural” products that were not natural, misrepresenting the quality of the products, and creating consumer confusion regarding the word “natural” in the sale of its products. For relief, Plaintiff seeks an order requiring complete and accurate labeling of the products, restitution to consumers, disgorgement of company revenue from the sale of the products to consumers, and punitive damages. Among their arguments, Defendants assert that the complaint fails to allege that a reasonable consumer would believe that a product marketed as “natural” has no trace pesticide residue.
At the August 6 hearing, Judge Freeman elected to take the parties’ arguments under submission but acknowledged that she would likely dismiss the case. Companies who market products as “natural” should monitor this and other pending lawsuits and stay alert for upcoming FDA guidance on what constitutes a “natural” product.