Class Action Lawsuits Allege Deceptive “Natural” Labeling Claims

As we previously reported here and here, there has been a noticeable increase in the number of lawsuits filed by consumers aiming to challenge “natural” advertising and labeling claims for dietary supplements and food products over the past year. Most recently, on July 26, 2012, a class action lawsuit was filed in the U.S. District Court for the Northern District of California alleging that General Mills, Inc. (“GM”) deceived consumers by marketing its Nature Valley granola bars as natural “when they are not wholly natural.” The complaint alleges GM deceptively uses the term “natural” to describe products containing ingredients that have been fundamentally altered from their natural state.

GM is the maker of Nature Valley food products including granola bars and other snack food items. According to the complaint, GM’s advertising and labeling Nature Valley products as “natural” violates several California consumer protection laws, including the California Legal Remedies Act, the Unfair Competition Law, and the False Advertising Law, because the products contain non-natural, highly processed ingredients such as high fructose corn syrup (“HFCS”), high maltose corn syrup (“HMCS”), maltodextrin, and rice maltodextrin.

Detailed in our previous report, many consumers feel they are being deceived by “natural” marketing claims and have urged the U.S. Food and Drug Administration (“FDA”) to adopt a formal definition for the term “natural.” In 1991, the FDA solicited comments on a potential rule regarding the definition. However, the FDA ultimately declined to adopt a formal definition. Currently, the FDA’s policy states that it considers “natural” to mean “merely that nothing artificial or synthetic (including colors regardless of source) is included, or has been added to, the product that would not normally be there.” 58 F.R. 2302. The informal policy regarding the use of the term “natural” does not carry the force of law. However, the FDA has sent Warning Letters to companies whose products claim to be “natural” yet contain ingredients the Agency regards to be synthetic which caused the product to be deemed to be misbranded pursuant to 21 U.S.C. 343(a)(1).

The uncertainty over the meaning of the term “natural” has brought a wave of recent class action lawsuits. Other products that have also faced consumer class action lawsuits for the use of “natural” claims on advertising and labeling include: ConAgra‘s Wesson Oils, Skinnygirl Margaritas, Kellogg’s Kashi, Tropicana‘s not-from-concentrate orange juice, Frito Lay‘s Tostitos and SunChips, Snapple beverages, and Ben & Jerry’s ice cream.

The plaintiffs’ attorneys in these cases argue that the “all natural” claim at issue is false and misleading because the product contains unnaturally processed, synthetic substances, or, in the case of Kashi, that the cereal contains genetically modified ingredients. While some products may technically be in compliance with FDA’s policy statement, they are not insulated against private actions because there is a lack of formal FDA or other government definition for “natural” claims. See, e.g., Holk v. Snapple Beverage Corp., 575 F.3d 329 (3rd. Cir. 2009). Without an FDA or other government definition, the plaintiffs’ attorneys can bring these suits and the food manufacturers must prove the claims are not false or misleading. Id. A formal FDA definition of “natural” could set a definitive standard for “natural” and eliminate these lawsuits. Id. For more information regarding what food manufacturers should know about “natural” claims, see please our previous report here.

A formal FDA definition of natural would not only benefit food companies, but it would also provide consumers with a clearer understanding and less confusion. For more information about the regulation of food advertising and labeling claims, please contact us at contact@fuerstlaw.com or (305) 350-5690.

This entry was posted on Monday, September 3rd, 2012 at 10:01 am and is filed under FDA, Litigation.

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