Beginning Next Week: InsideCounsel will become part of Corporate Counsel. Bringing these two industry-leading websites together will now give you comprehensive coverage of the full spectrum of issues affecting today's General Counsel at companies of all sizes. You will continue to receive expert analysis on key issues including corporate litigation, labor developments, tech initiatives and intellectual property, as well as Women, Influence & Power in Law (WIPL) professional development content. Plus we'll be serving all ALM legal publications from one interconnected platform, powered by Law.com, giving you easy access to additional relevant content from other InsideCounsel sister publications.

To prevent a disruption in service, you will be automatically redirected to the new site next week. Thank you for being a valued InsideCounsel reader!

X

More On

“All natural” claims cause a storm of lawsuits as consumers wait for FDA clarification

There is no current comprehensive legal definition of what “natural” means in the context of food products.

Currently, there is no legal definition of what natural means in the context of food products.

A lawsuit seeking to be certified as a class action was recently filed against the owner of Quaker Oats after testing found traces of the pesticide glyphosate in oatmeal. The lawsuit accuses Quaker of false advertising because it markets the oatmeal as “100% natural," a claim the lawsuit says is false and misleading.  

The Quaker Oats case is the latest in a large string of lawsuits over “natural” claims on food products

Additionally, snack-maker KIND faced several lawsuits in 2015 related to their use of the words “all natural” and “healthy.” And, lawsuits against Hain Celestial and Blue Diamond Growers were halted after the FDA announced in November 2015 they would consider the use of the word “natural” after companies were hit with a growing number of class action lawsuits and the agency received petitions asking them to clarify the term on food labels or even prohibit it all together.

Currently, there is no legal definition of what natural means in the context of food products. Although the FDA has a policy that “natural” means “nothing artificial or synthetic,” it’s not clear how some issues – like genetically modified ingredients or trace elements – fit within that policy. 

In fact, class action lawyers have stepped into that gap. Now that the FDA is reviewing its definition of natural, some of those class action cases have been put on hold until the FDA weighs in.

The FDA’s previous guidance does indicate that natural foods cannot contain anything artificial, but it is not clear their stance on high fructose corn syrup, GMO’s or other ingredients that are causing consumers to file suit. 

According to Char Pagar, marketing and advertising attorney with VLP Law Group, who sat down with Inside Counsel for an exclusive interview, as we await clarification from the FDA on the use of the term “natural,” food product companies would be wise to avoid using this term or similar claims all together. 

“Until the issue is resolved, these lawsuits will continue to pile up,” she said.

So, how are food companies getting away with this? According to Pagar, the EPA allows trace amounts of up to 30 parts per million in cereal grains, saying that such amounts are safe for human consumption. Even the plaintiffs in the Quaker case admitted that their testing showed that Quaker’s product had a lower amount than what the EPA allows – only 1.18 parts per million. 

Quaker says it does not add glyphosate to its products, but notes that farmers might apply it to certain grains prior to harvest. Also, Quaker claims that it cleanses the oats before using them so only low trace amounts of glyphosate remain.

“Some of the first lawsuits in this area challenged the use of high fructose corn syrup – a naturally-sourced, but highly processed ingredient,” explained Pagar. “Then, we had lawsuits challenging the use of GMO ingredients.  And now we’ve got this lawsuit challenging the presence of trace amounts of an agricultural pesticide.”

As current law is not clear about what the word natural means, she doesn’t think it would be accurate to say that companies are breaking the law right now. It is possible that the FDA will ban the use of “all natural” in the future, but Pagar suspects they will be more likely to regulate the use of the term than to ban it as an initial step.

The FDA will review the public comments they’ve received on the natural issue, go through their internal consultation process.

“And hopefully issue some useful guidance so industry members have clear standards and rules they can follow when they want to make a natural claim for a food product in the future,” she said.

Further reading:

When food attacks: Why top executives need to worry about criminal prosecution

The FDA seeks to regulate 3D-printed medical devices

McDermott adds an FDA lawyer to its roster

How will the FDA regulate 3D printing?

Contributing Author

author image

Amanda Ciccatelli

Amanda G. Ciccatelli is a Freelance Journalist for InsideCounsel, where she covers intellectual property, legal technology, patent litigation, cybersecurity, innovation, and more. She earned a B.A....

Bio and more articles

Join the Conversation

Advertisement. Closing in 15 seconds.