The FDA Must Define 'Natural' Soon

May 24, 2013
50 different state laws on labeling natural and genetically engineered foods would harm us all.

No federal regulations currently exist to govern the labeling of natural or genetically modified food products. Following California's unsuccessful attempt last fall to impose labeling requirements on genetically engineered food products, a second wave of similar initiatives is being proposed in approximately 20 states. As a nation, we cannot afford to have each of the 50 states setting its own regulations on our food supply. Such regulation would increase costs and could result in the removal of some of our favorite products from the shelves altogether.

Adversaries of proposed legislation argue that "enhanced foods" are not materially different in taste, nutritional value or safety, and that they improve yields, use fewer chemicals and are necessary to meet the increasing food needs of a growing population. Proponents of regulation promote it as a way to ensure consumers' "right to know" and as nothing more than the next nominal step in food safety regulation.

But who will be first -- the federal government with one uniform labeling standard or individual states setting their own different and unique labeling requirements? In February, two U.S. congressmen introduced a federal bill that would require the labeling of genetically modified foods. Walmart and other major food retailers and producers reportedly have met with advocacy groups to discuss the possibility of establishing a uniform set of federal regulations to preempt regulations by individual states. However, these efforts are still in their infancy and will take time to gain momentum and support.

Since a federal bill could trail the current initiatives being sought by states, the FDA may be the only player with the power to halt the possibility of multiple standards. The FDA previously defined and established regulations for organic foods, but despite repeated requests, the agency has refused to define "natural" for food products because it is "not among the FDA's current enforcement priorities." In an order dated May 10, a U.S. District Court Judge described the FDA's inaction:

"In repeatedly declining to promulgate regulations governing the use of 'natural' as it applies to food products, the FDA has signaled a relative lack of interest in devoting its limited resources to what it evidently considers a minor issue, or in establishing some uniformity in administration with regard to the use of 'natural' in food labels."

The agency has, however, determined independently that high-fructose corn syrup (HFCS), a highly refined sweetener made from corn, meets the definition of "natural." Does this suggest a lengthy and costly process of defining one item at a time?

About the authors
Don Butte is a senior food executive and expert in supply chain management and efficiency. Jeffrey Whitesell is an attorney with Tucker Ellis LLP, serving as counsel for product manufacturers. Tucker Ellis is a law firm with offices in Cleveland, Columbus, Denver, Los Angeles, and San Francisco.

The clock is ticking on efforts to pass a federal bill or FDA action setting a federal standard for natural and modified foods. Even if state initiatives pass first, they would likely face significant obstacles, including constitutional challenges, which could prevent the required labeling from ever appearing on food packages. Any legislation either compelling food producers to include specific information or banning certain information from labels could be vulnerable to federal preemption or First Amendment challenges. In addition, if these proposed regulations create unconstitutional burdens on interstate commerce -- the free exchange of products and commodities between citizens of different states -- they could face challenges under the U.S. Constitution's Commerce Clause.

In addition to these challenges, the impact of individual state legislation would reach far beyond the advocates' stated intentions and would directly affect all consumers nationwide, even if their home states impose no regulations. To survive such challenges would require a legitimate and compelling state interest. Advocates support legislation as necessary to protect consumers' right to know what's in their food, but if it doesn't protect any actual scientifically proven health or safety interest, merely satisfying consumer curiosity may not be enough.

The primary advocates of state legislation are a select group of consumers comprising less than 5 percent of the population who are willing to pay more for certain foods even though the USDA states that there is no proof that natural eating leads to better health.

If these consumers choose to live their lives and spend their money this way, they should be free to do so, but to impose their lifestyle and higher costs on the rest of the citizenry is both unjust and unaffordable. If the federal government continues to stand on the sidelines while the states take action in implementing regulations on these food products, we all may end up paying the price.

This article originally appeared in the June 2013 issue of Food Processing Magazine.

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