Like mosquitoes on a summer evening, lawsuits on the use of the term “natural” are stinging food companies. While it’s been suggested that an excess of regulations is suppressing industry growth, this is one instance where a regulatory definition might help.
As a result, the use of the term on consumer food labels may have slowed. However, questions remain, such as why is it used at all and what, if anything, guides its application by food processors and ingredient vendors.
Natural = Healthful
For consumers, the concept of natural and health are closely intertwined. Some 32 percent of U.S. consumers agree foods with a "natural" claim are good for their health, said Stephanie Mattucci, associate director-food science at Mintel Group, during a presentation at the recent Institute of Food Technologist's 2017 convention.
When the International Food Information Council (IFIC) Foundation’s 2017 Food & Health Survey asked consumers to define “healthy,” slightly over half ranked “free from artificial ingredients, preservatives, or additives” as either the first, second or third most important aspect. About a third said the same for “natural” and a little less than one in five indicated that “non-GMO” was one of the top three most important aspects of a healthful food. (see the survey)
Alan Rowan, ethical labels analyst at Euromonitor, speaking at the 2017 Clean Label Conference, reported on results from Euromonitor’s new Passport Ethical Labels database that tracks claims across 26 global markets. Worldwide, 44 percent of consumers were influenced by the claim “all natural,” followed closely with 40 percent for “no artificial ingredients,” he said. “Non-GMO” and “no artificial sweeteners” claims influenced 36 percent and 35 percent of respondents, respectively.
Manufacturers marketing products with such claims reap financial benefits. For example, Euromonitor can link product sales with package claims to help establish the value of a claim in a specific market. In looking at the dairy category in 2015, $11.3 billion in global retail value sales were generated by products with a “no artificial preservatives” claim and $7.8 billion in sales by products with an “all natural" claim. See chart “Dairy Clean Label: Claims by Value Sales, 2015.”
Regulation by litigation
Popularity of the term natural and consumers' belief it means products are more healthful have helped drive lawsuits.
High profile examples include those against General Mills for a “made with 100 percent natural whole grain oats” label claim and against Quaker Oats over products being labeled "natural," "100 percent natural," or "100 percent natural whole grain" when trace residues of the agricultural pesticide glyphosate were found in the oats.
Chobani was sued for “all natural” and “only natural ingredients” claims for yogurt that contained turmeric and fruit and vegetable juice for coloring. The plaintiff said the claims were misleading in that, among other things, the juices were highly processed and therefore unnatural. See the National Law Review for more information
Kashi and Kellogg, Ben & Jerry’s Homemade, AriZona beverages, Conagra Healthy Choice, Dannon and Sargento Foods all have faced lawsuits over their use of "natural,” and these companies are but a drop in the bucket.
It’s been reported that lawsuits over use of the term natural dropped in 2016 from 2015. However, by end of 2016 there were still more than 425 active lawsuits relating to this of issue. “That’s not including the many, many more settled out of court or made to go away with a strongly worded response letter at the demand letter stage,” says Allison Condra, an attorney at Davis Wright Tremaine LLP.
While additional claims such as “healthy” or the use of a fruit-type name when fruit is not present draw lawsuits as well, about one-third of the 400-plus suits were against products that made some type of “all natural” claim, she notes.
“This unprecedented surge of deceptive labeling and advertising lawsuits … reveals a trend of regulation by litigation,” charged Nicole Negowetti in a June 2014 article “Food Labeling Litigation: Exposing Gaps in the FDA’s Resources and Regulatory Authority” for the Brookings Institute. Food labeling issues are being turned over to the courts “in light of a lax regulatory system.”
In November 2015, the FDA requested information and comments on the definition of “natural.” The agency wrote that it had been relying on “a longstanding policy [outlined in 1993] concerning the use of ‘natural’ in human food labeling." It went on to say the agency has “considered the term ‘natural’ to mean that nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in that food.” The FDA clarified that the policy was not intended to address food (agricultural) production or a product’s manufacturing methods.
Additionally, the agency also noted that its policies on “natural” claims have not kept up with advances in food processing and packaging methods. The “FDA’s 1993 policy addressing ‘added color, artificial flavors or synthetic substances’ fails to resolve issues regarding [high-fructose corn syrup], enriched flour, modified starch, partially hydrogenated vegetable oils, organic solvents such as hexane, genetically engineered ingredients and pesticides,” Negowetti wrote.
The comment period ended May 10, 2016, and FDA is in the process of reviewing them. However, comments continued, according to the FDA’s website, and now number more than 7,700. Opinions are often strong. “I think you guys know dang well what natural is and need to put the interest of the people ahead of big time corporations,” commented Dana Rider on October 25, 2016 -- a sentiment voiced by many individuals.
A less emotional opinion was voiced by John Smith, principal at Cantaleir International, a consulting company on health and wellness ingredients and specifications. “The term ‘natural,’ when used to describe food or beverage products, is extremely vague and ambiguous,” he says. “Vast sums of money are spent on developing and defending natural claims which do not appear to be adding any clarification to the term. Perhaps it’s time to abandon the use of the term natural. After all, no food is natural unless eaten in the raw state."
An April 28 statement on FDA’s website concurs, but adds, “That said, FDA has not developed a definition for use of the term natural or its derivatives. However, the agency has not objected to the use of the term if the food does not contain added color, artificial flavors or synthetic substances.”
From pet food to meats
In the meantime, companies base product development and marketing decisions on what guidance they do have.
Some direction on natural flavors comes from the self-policing groups such as the Flavor and Extract Manufacturers Assn. (FEMA) and International Organization of the Flavor Industry. Even the FDA has left some bread crumbs: It regulates certified (read “artificial”) and exempt (read “natural’) colorants.
According to Mintel, the number of U.S. food and drink launches with artificial colors has been in steady decline from 15 percent in the period June 2012-May 2013 to only 9 percent June 2016 to May 2017.
More detailed advice is provided by less well-known sources. For example, the Assn. of Animal Feed Control Officials offers a model definition of the word “natural,” says Roger Clemens, professor at the University of Southern California. Although an AAFCO website says it does not “regulate, test, approve or certify pet foods in any way,”
Clemens says it “technically it has regulatory authority, per se. There is a memorandum of understanding with the Center for Veterinary Medicine such that the AAFCO in each state must (A) review each pet food and animal feed prior to marketing and (B) has the authority, by agreement, to approve or disapprove such products.”
AAFCO’s recommended guidelines read, “A whole product can claim to be all-natural or 100 percent natural when every ingredient used to manufacture the product complies with the feed term.” However, there is a “window” in which certain other synthetic ingredients can be included, notes Clemens. These ingredients are limited to synthetic vitamins, minerals and trace nutrients; and the pet food must display a disclaimer along the lines of “natural with added vitamins, minerals and trace nutrients.”
USDA may provide the clearest counsel on the meaning of natural. Its August 2005 Food Standards and Labeling Policy Book allows for the term on meat and poultry products with a variety of requirements. Included are "the product does not contain any artificial flavor or flavoring, coloring ingredient, or chemical preservative (as defined in 21 CFR 101.22), or any other artificial or synthetic ingredient. And that the product and its ingredients are not more than minimally processed."
An effort is made to list these minimal processes.
More recently, USDA published a “Guidance - Classification of Materials” for its National Organic Program with the stated purpose of describing "the procedure used to classify materials as synthetic or nonsynthetic and as agricultural or non agricultural..." A document with links can be seen at https://goo.gl/953PUW. It includes a useful "Guidance: Decision Tree for Classification of Materials as Synthetic or Nonsynthetic."
Producing natural through food science
During a walk through any food ingredient expo or survey of ingredient promotional literature, one can see examples of how vendors are in general harmony with the USDA Guidance as they use natural and related terms to differentiate an array of ingredients from their synthetic alternatives.
The guidance explicitly states that ingredients should not be changed into a different substance by a chemical process; should not be altered into a form that does not occur in nature; and if synthetic materials are used in separation or isolation steps, they must be removed from the final product such that “they have no technical or function effect in the final product.”
It notes that agricultural materials chemically changed through allowed agricultural processing processes such as cooking and baking will not cause the product to be synthetic. Neither will the use of naturally occurring biological processes such as fermentation. In practice, microbial cultures and enzymes have long been used to produce natural additives. These technologies are increasingly sophisticated.
Similarly, isolation and purification processes such as steam distillation, filtration, chromatography and crystallization have garnered increased use and also have advanced. The concept of “soft chemistry” or chimie douce, which uses ambient temperature reactions in open containers that can more closely mimic biological systems, is becoming more familiar to researchers.
These concepts can be difficult to communicate to food technologists, the direct customers of ingredient suppliers. This author saw one vendor making a good faith and sophisticated effort to educate its clients as it noted that no covalent bonds were created or broken in the production of its product.
Finally, it is useful to remember that not all consumers desire everything they eat to be natural. According to Mintel Purchase Intelligence data, only 33 percent thought Frito-Lay’s Simply Cheetos Puffs White Cheddar Cheese Flavored Snacks, which lacked the artificial color and flavor of the original Cheetos, was natural. More importantly, only 58 percent said they'd purchase the Simply Cheetos compared to 62 percent who said they'd buy the fluorescently orange Cheetos Crunchy Cheese Flavored Snacks.
Sometimes you want to buy something just because its tastes really good … and you like the artificial color.