With the federal government all but ignoring the numerous ways food companies deceive shoppers with dubious health claims, the courts are becoming a more popular alternative for action.

As you may recall from civics class, we have three branches of government, and when two of them – the executive and the legislative – have essentially checked out, that leaves only one place to turn for a legal remedy: the judiciary. Despite years of brainwashing by the right wing about the evils of trial lawyers, litigation is a critical and yet underutilized tool for obtaining justice under a broken and compromised political system.

Under both federal and state law, it’s illegal to engage in deceptive marketing. This is a broad concept that applies to any entity that advertises. The idea is that consumers should not be swindled into buying a product; they deserve the straight facts to make informed purchasing decisions. And while such laws do help deter shady activities, deceptive marketing statutes get violated all the time, mostly due to lack of enforcement.

It may be unsettling to realize that on grocery store shelves right now are likely hundreds of food products that contain illegal deceptive claims. While the federal government does have specific definitions for some phrases such as “low fat” or “low salt,” otherwise almost anything goes on the front of a food package because the feds have turned a blind eye. Without proper government oversight, the only recourse is for private law firms to set these companies straight.

Here are some examples of deceptive food marketing cases currently gaining traction. (Full disclosure, I am a consultant for Reese Richman, one of the law firms bringing such cases.)

Natural Claims

The Food and Drug Administration is unwilling to provide useful guidance on the definition of “natural,” resulting in ubiquitous use of the word by marketers, no matter how nutritionally deficient the product. Factor in the growing interest in organic along with consumer confusion over that label’s meaning and you have a marketing bonanza in “natural” food.

Some lawsuits are being filed over products sporting the natural label that contain genetically-engineered ingredients. Two such examples are ConAgra’s line of Wesson cooking oils and Frito-Lay’s snack products. To back up their claims, lawyers are even relying on Monsanto’s own definition of genetically-modified organisms: “Plants or animals that have had their genetic makeup altered to exhibit traits that are not naturally theirs.”

In a positive development in the ConAgra case last November, the judge found that that the plaintiffs adequately described “why genetically-modified products cannot be considered natural” and “they understood that the phrase ‘100% Natural’ meant that Wesson Oil was not made from genetically modified organisms, and that they purchased the product based on this false understanding.” This is a huge step forward for these types of cases.

In a similar action against Frito-Lay, the court recently made a preliminary ruling in favor of the plaintiff allowing the case to move forward. In its defense, Frito-Lay argued that no reasonable consumer would expect the phrase “all natural” to actually refer to all of the ingredients in the product. The court disagreed, since a reasonable consumer could interpret “all natural” to mean, um, all natural.

Such cases have tremendous potential to rock the processed food world, given how many products containing GMO ingredients are currently touting the meaningless natural label. Moreover, with increasing calls for mandatory GMO labeling at both the federal and state levels, along with voluntary retailer actions from the likes of Whole Foods, this issue is not going away anytime soon.

Other cases challenging the natural label are over products containing ingredients that are obviously not natural. One such lawsuit is against the Kellogg-owned Kashi GoLean brand of products. From the complaint:

For example, Kashi’s ‘All Natural’ GoLean Shakes are composed almost entirely of synthetic and unnaturally processed ingredients, including sodium molybdate, phytonadione, sodium selenite, magnesium phosphate, niacinamide, calcium carbonate, calcium phosphate, calcium pantothenate, pyridoxine hydrochloride, thiamin hydrochloride, potassium iodide, and other substances that have been declared to be synthetic substances by federal regulations.

Not sounding very natural. The judge has allowed this case to move forward.

Products Aimed at Children

Marketing to children qualifies as illegal deception because a child cannot understand how marketing works. What could be more deceptive than taking advantage of a child’s emotional vulnerability? Unfortunately, we have zero enforcement of this obvious legal violation due to weak-kneed government officials, once again leaving it up to the court system.

To date only one lawsuit has been filed directly challenging marketing to children— against McDonald’s over Happy Meals—an obvious target. The case was brought by the Center for Science in the Public Interest, the only nutrition advocacy group with a litigation department. (This helps explain why this tool is so underutilized.) Unfortunately, the judge dismissed the case last year. While suing over marketing to children does face certain procedural challenges, with the right venue and strategy, I am hopeful we can gain traction in time.

In lieu of directly challenging food makers for targeting children, another strategy emerging is suing over child-oriented products that make deceptive health claims. One such example is the General Mills’ product, Fruit Roll-Ups.

Also filed by Center for Science in the Public Interest, this case took the company to task for its claims their products were “fruit flavored,” “naturally flavored,” a “good source of vitamin C,” and low in calories, fat, and gluten. (Seriously, low in gluten?) In December, this case was settled when General Mills agreed to stop using the most egregious practices; for example, no longer putting images of strawberries on a product that contained none. Duh.

Chutzpah Claims

Taking the prize in the chutzpah line of cases is Coca-Cola’s vitaminwater brand. This lawsuit alleges deceptive marketing for positioning the product as a health tonic, when some varieties contain a whopping 33 grams of sugar (in 20 ounces), among other unhealthful ingredients such as dyes. That case has also been allowed to move forward, despite Coca-Cola’s desperate argument that “no consumer could reasonably be misled into thinking vitaminwater was a healthy beverage,’ a claim that was skillfully ripped apart by John Robbins and as well as hilariously pilloried by Stephen Colbert.

Another product deserving a chutzpah award is Chobani yogurt, a brand that has taken on near-iconic status in the most health-washed category of all. Chobani is being sued over its “all-natural” claim (among other statutory violations) because the label lists “evaporated cane juice,” which is just a fancy way of saying sugar. This, despite the FDA’s explicit warning to food makers not to use the phrase because the accurate description of the ingredient is actually “dried cane syrup.” But juice sounds so much more “natural” than syrup.

In a recent Twitter exchange, I had some fun with the poor social media person at Chobani. Despite the lawsuit, the company continues to use the phrase “evaporate cane juice.” When I asked why not just call it sugar, the reply was: “It’s specifically the form we use. Not all sugars are created equal.” But I got no response when I next tried to ask exactly how their sweetener was any different from sugar. (Maybe the lawyers got hold of the Twitter account.)

Rounding out the chutzpah category is Nutella, which got in legal trouble for advertising its dessert-like product as healthy breakfast. Although the case was settled for $3 million, it was also the subject of some ridicule by those who thought it was obvious that Nutella is a treat. But that critique misses the point: Under the law, companies are not allowed to market its junk food products as healthful. In a seminal case against Gerber for deceptively marketing children’s “fruit snacks,” the company tried to use the Nutrition Facts label as a defense, since the ingredients and amount of sugar are clearly listed there. But the judge explained that information being available elsewhere (like on the back of the package) does not make it OK for a company to deceive consumers in other ways, such as on the front of the package or in ads.

Litigation Challenges

While litigation represents an important tool for holding food companies responsible, there are also numerous challenges. For example, the strategy requires targeting one product or line of products at a time, which is not the most efficient approach for sweeping change. However, strategic selection of the worst (and largest) offenders can send a strong message to an entire industry.

Another limitation is how long the court process can take: often several years just to get through the preliminary phase. And, corporate defense lawyers are skillful at dragging out the process in hopes the plaintiffs will give up. Finally, the results are sometimes less than ideal. Most cases end in settlement because they are too costly to bring to trial, and negotiation necessitates compromise.

But given the widespread health-washing by a desperate food industry at a time when the American public is starting to realize that actual fruit may be a healthier option than Fruit Loops, litigation is a critical, if imperfect, tool.

Why Get Involved in Litigation?

Advocacy groups engaged in the good food movement should take notice. While major foundations may be too skittish to fund litigation, organizations can still team up with private lawyers to bring more of these sorts of cases. Nonprofits can play different roles such as: 1) offering specific expertise as consultants; 2) asking their members to serve as plaintiffs; 3) being a named plaintiff themselves in certain types of actions; or 4) serving as co-counsel.

Perhaps the best motivator for a nonprofit group to get involved in litigation is the potential for being awarded part of a “cy pres” fund: money set aside in a settlement for nonprofits doing good work that is sufficiently related to the case. Several good projects got their start with cy pres money, including a California-based group called CANFIT, which works with adolescents around health and nutrition. That settlement fund was from a deceptive marketing case against Kraft Foods, and some 20 years later the group is still going strong.

We have our work cut out for us with so much deception in the marketplace, but with better coordination and teamwork, we can make real progress through the legal system. It’s a shame that we have to turn to the courts at all, but that’s the political reality right now. Someone has to hold the food industry accountable.

Nation’s largest peddler of soda and junk food has the most at stake in ballot measure

Most people just think of soda when they hear the name “Pepsi.” But in fact, PepsiCo is the nation’s largest food company and second largest in the world. Its annual earnings top $60 billion, from a dizzying array of brands. Walk down almost any supermarket aisle (soda, snacks, cereal, juice) and you’re likely to bump into a PepsiCo-owned product.

This explains why the company is the top contributor among food makers to the “No on 37” campaign in California – a ballot initiative that would require labeling of foods containing GMO ingredients. Also, as I wrote about recently, PepsiCo is a member of the Grocery Manufacturers Association, a powerful trade group that has so far contributed $375,000 to the No on 37 campaign.

Why would PepsiCo pony up more than $90,000 just to keep Californians in the dark about what they are eating? A closer look at its “portfolio of products” (in corporate speak) reveals exactly what’s at stake for the food giant.

PepsiCo brands span five divisions: Pepsi-Cola, Frito-Lay, Gatorade, Tropicana, and Quaker. While most consumers probably think of processed snacks and cereal-type products when trying to avoid foods containing GMOs, beverages are also a major culprit (which explains why Coca-Cola has donated more than $61,000 to the No on 37 campaign).

Estimates are that up to 85 percent of corn grown in the U.S. in genetically engineered, and a significant number of PepsiCo brands contain some form of corn. For example, among PepsiCo beverages sweetened with high-fructose corn syrup are brands such as Pepsi and Mountain Dew, as well as the AMP Energy and Lipton iced tea lines, each of which contain numerous flavor varieties. Even some products within the company’s Tropicana line of “juice drinks” contain HFCS. Then there’s Naked Juice, which last year became the target of a consumer deception lawsuit over the brand’s “non-GMO” claim on the label, among other issues. (Gatorade reformulated its products to replace HFCS in 2010, but is not exactly a health drink either, as recent research has revealed.)

Speaking of GMO-related lawsuits against PepsiCo, I wrote last December about how the company is being sued over several Frito-Lay snack products labeled “natural,” despite containing genetically-modified corn and vegetable oils, including corn, soybean, and canola oils. (That case was re-filed earlier this year.) In 2010, Frito-Lay announced that half of its products would be made of “all-natural ingredients,” but of course non-GMO isn’t part of the company’s definition of natural. As I have explained, the Food and Drug Administration unfortunately has so far refused to create a workable definition, which is why companies like PepsiCo are able to deceive customers so easily.

The scope of Frito-Lay products potentially impacted by GMO labeling is vast. Among the brands under this $13 billion division that contain corn include Fritos, Doritos, Tostitos, and Cheetos. And that’s not counting the vegetable oils, which are almost all made with GMO ingredients. Even allegedly healthier brands like SunChips contain GMO corn, which is why that product is named in the deceptive labeling lawsuit against Frito-Lay.

Even PepsiCo’s relatively healthy division Quaker would be impacted if GMO foods must be labeled. In addition to plain old oats, the Quaker brand makes heavily processed granola bars. I counted six sources of corn—including HFCS and “corn syrup solids”—in this new “yogurt” variety (which contains no actual yogurt, but rather “yogurt flavored powder” – don’t even ask). It’s one thing for junk foods to bear a GMO label; I can’t imagine hard-core Cheetos fans caring too much about GMOs, but Quaker consumers probably would.

Another PepsiCo brand sure to make HQ nervous over GMO labeling is Mother’s, which claims its products are “all natural.” The Cornucopia Institute tested Mother’s cereal and found that it contains GMO ingredients, which is expected since some of the varieties contain corn. Imagine how many mothers would be upset to learn that the cereal named after them is genetically engineered.

PepsiCo’s official policy regarding using GMO ingredients is rather bland:

Approval of genetically-modified foods differs from country to country regarding both use and labeling. For this reason, PepsiCo adheres to all relevant regulatory requirements regarding the use of genetically-modified food crops and food ingredients within the countries it operates.

Translation: We follow the law, very impressive. But the statement also points to how the company has different standards around the world depending on what the law requires. More than 40 other nations— including the entire European Union— require some form of disclosure for foods made with GMOs.

What a shame that here in its home country, PepsiCo wants to ignore what 90 percent of American consumers say they want: to know which foods contain GMOs. PepsiCo would rather fight to maintain the status quo because it means a continued cheap supply of ingredients for its highly-processed, unhealthy beverages and junk food.

As I noted before, the implications of such a case is potentially far-reaching, given how many brands containing GMO ingredients are currently touting the meaningless natural label. The Food and Drug Administration has so far refused to give us much guidance, despite the increasing trend by marketers to obfuscate and confuse consumers.

This case could especially rock the salty snacks world given the huge reach of Frito-Lay products, along with parent company PepsiCo’s ongoing efforts to retool its image away from junk food toward healthy goodness, aka “better-for-you” foods. One year ago, Frito-Lay promised that “approximately 50 percent of its product portfolio will be made with all natural ingredients, including three of its biggest brands,” Lays, Tositos, and SunChips.

What does that mean?

I tried to find out at the American Dietetic Association annual meeting in September, where PepsiCo had two massive expo booths, one just for Frito-Lay where various “natural” snacks were on display. I asked, how did they measure “50 percent” – half of what? I was told, half the total tonnage of Frito-Lay products would be natural. (I imagined giant scales to ensure compliance.)

What does “natural” mean to the king of salty snacks? From its website:

The products made with all natural ingredients do not have any artificial or synthetic ingredients, and they do not contain any artificial flavors or artificial preservatives, or ingredients such as monosodium glutamate (MSG), yet still have the great taste consumers expect from Frito-Lay.

The lawsuit would beg to differ. According to the complaint, six varieties of Tostitos and four SunChips flavors, each labeled “made with ALL NATURAL ingredients,” are deceiving consumers through package labeling and advertising because the products contain genetically-modified corn and vegetable oils (including corn, soybean, and canola oils).

To back up the claim, the complaint cites Monsanto, the company everyone loves to hate for its promotion of genetic engineering technology. On its website, Monsanto defines GMO as: “Plants or animals that have had their genetic makeup altered to exhibit traits that are not naturally theirs.” The complaint concludes that “the reasonable consumer assumes” that a process whereby seeds are swapped across species is not “all natural.”

Given that Frito-Lay is the nation’s largest snack producer, and half of all Frito-Lay products are labeled “natural,” that’s a lot of tonnage to defend. I am sure the company has a few good lawyers at the ready. Stay tuned.

These days, many companies–and especially food companies–are falling over each other to prove their green cred to consumers. But given the usual challenges of trying to save the planet while you’re destroying it, most efforts amount to a whole lot of greenwashing.

So when Frito-Lay announced last week that its SunChips compostable bag was a bust due to complaints that the bag was too noisy, the company found itself on the receiving end of some well-deserved, internet-fueled snark. One of the snarkiest came from Change.org’s Sustainable Food Editor Sarah Parsons, who writes:

The switcheroo came after Americans complained about the bags’ noise level—the little sacks apparently cause quite the ruckus as folks stick their paws in and out to grab fistfuls of chips. In the past year alone, SunChips sales decreased by more than 11 percent, mostly due to the boisterous bags. A Facebook group called “Sorry But I Can’t Hear You Over This SunChips Bag” boasts more than 44,500 fans. Apparently a SunChips bag that drowns out the sound of one’s own chip-crunching was very disconcerting for a populace that’s come to expect a more subtle rustling from its potato chip sacks.

Next, Change.org started a petition to ask Frito-Lay to reconsider its decision; after all, the planet will ultimately suffer more than consumers’ ear drums. No worries, Frito-Lay (a division of PepsiCo that makes truckloads of salty snacks) is on the job. Here, reprinted in its entirely, is the email response I received from Director Consumer Relations Cathy Dial after I signed the Change.org petition:

Hi Michele,

Thanks for your email about the SunChips compostable package. Marc forwarded your email to me for follow up with you. Frito-Lay is taking steps to improve the SunChips 100% compostable packaging launched in early 2010. The new steps help address consumers’ feedback about the bag’s noise level, while continuing to build on the environmental benefits.

While Frito-Lay works to develop a next-generation compostable package, SunChips Original snacks will remain in the current 100% compostable package, while the other SunChips flavors have transitioned back to their traditional packaging. Once the improved compostable bag is ready, it will be featured in the SunChips Original flavor.

As with many leading-edge technologies, there is an ongoing process of improvement and refinement. We are confident the approach we are taking will allow us to continue our sustainability progress, while also showing our consumers that we are committed to responding to their needs and preferences.

Frito-Lay has a long track record of progress and leadership in environmental responsibility, and the compostable bag is an important step in our sustainable packaging journey. Thank you again for your feedback.

I had no idea it was even possible to be on a “sustainable packaging journey,” but it sure sounds precarious. Well, I had a few more questions for Cathy, so I asked her to clarify, and here are those questions, with her answers below each, in italics:

Thanks, Cathy,

I am a little confused. Perhaps you can clarify:

1) Why keep just one flavor in the noisy bag if it’s such a problem?

We are keeping the current 100% compostable packaging on one SunChips SKU because we are still very much committed to developing sustainable packaging, but are trying to address feedback from consumers at the same time. By keeping a SKU active with the compostable packaging, it also provides a path to quickly bring the next-generation bag to market, which we are aggressively developing.

2) Are you saying the new bag will be only for the Original flavor? Why wouldn’t all of the flavors be offered in the new bag?

When the next-generation bag is ready, we will initially make it available with Original flavor SunChips. We will then continue our evaluation process, collect feedback from consumers and other stakeholders and determine an appropriate strategy to potentially extend it.

3) Why just SunChips? Why isn’t the company interested in protecting the environment for all of its products?

Frito-Lay’s R&D team is working on a wide range of potential sustainable packaging options beyond just the SunChips compostable bag, and we are looking at how other brands in our portfolio could bring them to life. SunChips was our starting point for bringing sustainable packaging to market and we are hoping to build on that with other product lines.

OK, I guess we will just have to follow Frito-Lay along its sustainable packaging journey. Let’s hope it’s a quiet path.