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Making Sense of "natural"

May 13, 2011

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Brown-rice syrup, citric acid, corn syrup and corn syrup solids, maltodextrin, partially hydrogenated soybean oil, Dutch-processed cocoa powder, invert sugar, anhydrous dextrose. Which of these are “natural” ingredients? 

It depends on who you ask.

While consumers and the health food industry alike are waiting for an answer, regulators have stayed mum. Meanwhile, plaintiffs’ lawyers and consumer-protection advocates have taken action against the multibillion-dollar industry of foods labeled “natural.”

But what does “natural” actually mean? The Food and Drug Administration, which regulates food labels, has been reluctant to decide.  In the early 1990s, the FDA published a non-binding “informal policy” defining the term to mean that there is nothing artificial or synthetic in the product that a consumer would not normally expect to be present. 

More recently, major food industry players petitioned the FDA to formally define the term, but it declined to act, citing limited resources and insufficient evidence that the term is misleading consumers.  As a result, food companies have been left with the unpredictable approach of case-by-case review. 

Even so, there is at least some hope that the FDA may reinitiate rulemaking for “natural.” For one, President Obama expanded the FDA’s 2012 budget by about $1 billion, a 33 percent increase, presumably in response to the FDA Food Safety Modernization Act, which the president signed into law in January. 

In contrast, the United States Department of Agriculture has made genuine efforts to provide a binding rule defining “natural” for the food it regulates, including poultry, eggs and meat. Though the Agriculture Department initiated serious rulemaking efforts in 2006, it stopped short of finalizing a rule. 

What remains, then, are the department’s non-binding guidelines. They require that naturally labeled products do not contain any artificial flavors or colors and are minimally processed. Not wanting to interfere with the FDA’s and USDA’s regulatory efforts, the Federal Trade Commission intentionally has not taken a stance on “natural” claims.  While the FTC may take enforcement action against false and misleading advertising, it has not addressed the use of “natural” in food advertisements to avoid duplicative or conflicting guidance with FDA and USDA standards. 

Thus, only the FTC’s standard caution that claims in general be substantiated guides food advertisers. To address the gap in federal regulations, plaintiffs’ lawyers have increased their efforts to police perceived misuse of the “natural” claim and, indirectly, to push federal agencies to action. 

Since 2008, plaintiffs’ lawyers have filed numerous false-advertising lawsuits against food and beverage producers whose food labels bear “natural” claims.  Initially, courts refused to hear the claims, arguing that FDA regulations preempted state law claims.  But recent decisions have rejected those arguments, paving the way for federal judges to decide exactly what “natural” is. 

Some judges with “natural” cases pending may be waiting to do just that – if not to formalize the legal definition of the term, then to spur the FDA into action. Consumer protection groups have also been influential in policing “natural” with their use of publicity and litigation threats to strong-arm producers into removing the claims. 

In particular, the Center for Science in the Public Interest has been especially active in this manner, relying on consumer confusion and producer deception as the basis for its actions. It targets products that claim to be “natural” but include ingredients that have undergone changes in molecular structure before being added to the product.  For instance the owners of Ben & Jerry’s ice cream, 7UP and CapriSun removed “natural” claims from their labels in response to the Center’s efforts.

In short, until federal regulatory agencies formalize existing guidelines – or perhaps until a pending lawsuit ends up forcing the FDA or USDA into rulemaking – food producers are exposed to unnecessary risk, whether by enforcement actions, negative publicity, litigation or costs of developing products, packaging and advertising. 

Moreover, the agencies’ rulemaking reticence leaves lower courts and states free to define “natural,” potentially resulting in even greater regulatory confusion.  The result is that, without a clearly defined rule to follow, producers stand to lose substantial funds invested in developing processes, products and marketing. 

Alternatively, companies may opt not to develop certain products because of the regulatory uncertainty, keeping otherwise beneficial products from consumers and well- deserved revenues from producers.

Despite these challenges, while companies and consumers alike take unnecessary risks under the current state of the law, pending cases and the FDA’s expanded authority and budget may soon result in more reliable guidance about “natural” claims for sustainable food producers.             

For more information, please contact:

Robert McFarlane

415-995-5072 Direct Phone
415-541-9366 Fax

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