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.