Last year in this space I asked if it was time for the Food and Drug Administration to define how food makers can and cannot make “natural” claims on their labels. With Americans looking for healthier options, more food companies are jumping on the natural bandwagon, despite many overly processed products being anything but.
While the FDA continues its hands-off approach on the confusing term, lawyers are filling the gap left by federal regulators. Several lawsuits have been filed challenging food companies for using the natural label, for example, on products containing genetically modified ingredients (aka, GMOs).
In recent months, two cases reaching the settlement stage have important implications for the natural food industry.
In one case, Barbara’s Bakery was sued for making the natural claim on many of a wide array of products containing either GMO ingredients, or artificial or synthetic ingredients, including the company’s cereals, fig bars, cheese puffs, granola bars and cookies.
As part of the settlement, in addition to creating a $4 million fund, Barbara’s agreed to modify its labeling and advertising, and most significantly, to remove GMO ingredients and obtain independent verification from the Non-GMO Project.
In an attempt to rewrite history, about a month after the settlement agreement was announced, Barbara’s put out a press release saying their new GMO-free path was thanks to consumer demand, claiming they “always listened closely to our loyal fans.” Not to mention court orders.
In a similar development, several cases filed against PepsiCo-owned Naked Juice will likely be settled for $9 million. The company has also agreed to stop using the “all-natural” claim and work with a third-party, non-GMO verifier.
That class action took Naked Juice to task for making “all natural” claims despite containing substantial amounts of artificial substances such as synthetic fiber and numerous other chemicals found only in labs, not in nature. (Even FDA says natural claims should not be used on products containing synthetic ingredients.) Perhaps even more damning, Naked Juice protein products labeled as “non-GMO” actually contained GM soy. (Doesn’t PepsiCo have a legal department?)
As of this writing, the settlement in both cases is still pending court approval.
Will FDA step in?
These cases are significant because while lawsuits over deceptive claims may result in the company changing labels to remove the deception, it’s rare to have a food company take the additional and more expensive step of reformulating its products. No doubt increasing concerns over GMOs and consumer demand for GMO-free food is another driving factor, demonstrating the power of legal action combined with education and advocacy.
Meanwhile, numerous other natural claims lawsuits are making their way through the court system. In two such cases, the judge has placed the matter on hold pending any FDA action to define natural. The legal concept here is called “primary jurisdiction,” the theory being that FDA, not the court, is the expert on what natural means and should decide. Only one problem: FDA isn’t going to do that anytime soon, if ever.
Steve Gardner, litigation director for Center for Science in the Public Interest, which has sued several food companies, was quoted in the media that court deference to FDA makes sense only “when there is a chance in hell of FDA acting” but here the agency “has repeatedly confirmed” there is no such chance.
Fortunately, not all judges are falling for this ruse. In a case against Smucker for its Crisco product labeled “all natural” despite containing GMO ingredients, the judge rejected Smucker’s request to defer to FDA, noting how the agency “has declined” to define natural “because of its limited resources” and “other priorities.”
Processed food companies should take note of this trend in the courts: Judges are showing hostility toward bogus natural claims and offending companies are realizing that settling is the best way to go. And even when courts put a case on hold waiting for FDA to act, the litigation is just temporarily postponed.
Why take a chance on becoming the next target of a class action? The negative publicity alone isn’t worth the headache, not to mention the legal fees and real chance of losing or being forced into an expensive settlement. Why not just play it safe and stop making natural claims altogether? Also, it’s the right thing to do.