August 6, 2013
Two federal judges have requested guidance from the Food and Drug Administration on the propriety of using the word “natural” in food and beverage labeling, particularly where a product contains genetically modified organisms (GMOs). In Cox v. Gruma Corp., Judge Yvonne Gonzalez Rogers of the Northern District of California was first to refer the question to the FDA, pursuant to the primary jurisdiction doctrine and 21 C.F.R. § 10.25(c).
In an action questioning the lawfulness of labeling tortilla chips made from bioengineered corn seed as “All Natural,” Judge Rogers noted that the Food, Drug, and Cosmetics Act, along with the Nutrition Labeling and Education Act, gives authority to determine this question squarely with the FDA, and any attempt by a court to answer it would risk usurping the agency’s province. Id.
One week later, in a similar case involving General Mills’s labeling of its Nature Valley® granola bars as “100% Natural,” the District of Colorado’s Magistrate Michael Watanabe cited Judge Rogers’s decision to defer to the FDA in his order doing the same. See Van Atta v. General Mills, Inc., No. 12-cv-02815 (D. Colo. July 18, 2013) (recommendation on defendant’s motion to dismiss).
The FDA and, at times, the Federal Trade Commission or the United States Department of Agriculture, provides clarification on the use of certain food and beverage marketing buzzwords. See, e.g., FDA’s Guidance Document on Whole Grains, FDA’s Guidance Document on Calcium, Vitamin D, and Osteoporosis, FTC’s Food Advertising Guide, and USDA’s Regulations on Organic, 7 C.F.R. § 205.300 et seq. But, as both Judge Rogers and Judge Watanabe mention in their orders, the FDA has not hitherto mandated that products containing GMOs be labeled as such.
Nor has the agency—despite defining “natural” to mean that “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”—determined the applicability of the word to food and beverages containing GMOs.
Of course, not everyone is in agreement that the FDA should weigh in on this issue. For example, just a few months ago, a judge from the Southern District of Florida declined to apply the primary jurisdiction doctrine—dismissing or staying an action when a plaintiff’s claim implicates a matter especially in an administrative agency’s wheelhouse—to determine the propriety of labeling Campbell’s soups as “All Natural” when they are made from genetically modified corn. And in a different lawsuit again involving General Mills’s Nature Valley® products, a District of Minnesota judge dismissed the action entirely, finding plaintiffs had failed to show how they were deceived by the company’s “All Natural” packaging claims.
However, with more and more consumers demonstrating a desire for organic or unprocessed food—and as the number of lawsuits challenging the truthfulness of food and beverage labels on that basis continues to grow—the FDA may wish to take a more definitive stance on this issue, both to standardize the definition within the food industry and to provide more certainty for consumers who depend on product packaging claims when making buying decisions.
In fact, the FDA recently provided just such clarification with regard to “gluten-free” claims. Food Labeling; Gluten Free Labeling of Food, 78 Fed. Reg. 47154 (Aug. 5, 2013) (to be codified at 21 C.F.R. pt. 101). Perhaps it’s time the agency does the same for “natural” claims.
If interested in doing more research on those lawsuits challenging the use of “natural,” “all natural,” “100% natural,” and the like, I’ve crafted some searches you might try. I started with this Plain Language search:
Query: all-natural food label GMOs
Jurisdiction: All States & Federal
I call to your attention a Maine Law Review article on the current state of the food industry with regard to “natural” claims. See Nicole E. Negowetti, A National “Natural” Standard for Food Labeling, 65 Me. L. Rev. 581 (2013).
The results of this initial search yielded many key terms, which I then used to construct a targeted Terms & Connectors search. I’ve restricted the search to documents from the last couple of years, but you could always go back further in time if you’d like.
Query: advertis! market! label! brand! packag! product /s natural! & G.M.O. (genetic! /3 modif! engineer!) bio-engineer! synthetic! artificial! unnatural! process! (no not non +2 natural!) /7 food drink beverage product ingredient organism substance flavor additive preservative & DA(aft 01/01/2011)
Jurisdiction: All States & Federal