While many continue to call on the FDA to define what the label claim "natural" means, litigation, other descriptors and certification programs may be making that fight moot.
The tagline for Natural Products Expo West -- "where doing business comes naturally" – is being replaced by "Where being sued comes naturally," quipped Loren Israelsen, president of the United Natural Products Alliance, in one of the first conference sessions at the show.
While he and the main speaker -- Justin Prochnow, an attorney with Greenberg Traurig LLP – talked of the continuing pursuit of a definition of natural, "I think we're seeing the end of the golden age of natural," Israelsen added. "The FDA doesn't want to define natural. They know what a mess this is."
Prochnow launched into the session "GMOs and Natural Claims Litigation: Five Ways to Protect Your Company." Especially with "90 percent of so many crops being genetically modified (GMO)," even well-intentioned companies making a natural claim may be surprised to find an ingredient or two that is GMO. Until FDA or some other regulatory body clearly proclaims GMOs as natural products, manufacturers are going to be sued, especially by class-action attorneys and especially in California.
However, GMOs are not the only culprit. The first "natural" lawsuit actually was over high-fructose corn syrup, he noted. Alkalized cocoa and other ingredients created through the use of solvents also are being challenged if they claim to be natural.
"Unless you pull it out of the ground yourself and put it in a box, you risk being sued for claiming something as all-natural," Prochnow said. "Even so, you could be the target of a class action suit" in which settling is simply less expensive than defending yourself.
His five ways to protect your company:
- Review your labels yourself. Some infractions are obvious.
- Avoid unqualified claims, such as "all natural."
- Focus on what your product doesn't have (and is provable) – no artificial colors or sweeteners, gluten-free, organic, etc.
- Rotate your label claims, so if you are named in a class action, the "class" will be smaller (fewer consumers will have seen your previous claim).
- If you are sued, don't stick your head in the sand. React, get a lawyer and prepare a defense.
Read more about the show at Natural Products Expo West 2014 Breaks Records