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'All-Natural' a Legal Gray Area for Food and Beverage Labeling

Oct. 30, 2009
As a marketing enhancement, ‘All-Natural’ is a natural. But as a definition on a food or beverage label, it resides in a gray legal area.

The 1990s hit TV show “Seinfeld” made more than half a billion dollars for its producers by being “all about nothing.” The “natural” label has done the same for an entire group of food & beverage producers.

The short answer is, there is no official definition of the word “natural” sanctioned by a government body or even a trade association. Yet, consumer research group Mintel International (www.mintel.com), Chicago, reports food & beverage products labeled “natural” beat out all others in numbers of products launched.

Not everyone agrees on what “natural” is. But one thing is for sure: We know what it isn’t. Or do we?

“Under section 403(a) of the Federal Food, Drug, and Cosmetic Act, a food is deemed to be misbranded if its labeling is ‘false or misleading in any particular, including a natural claim,’ ” notes Leslie Krasny, an attorney and microbiologist in the San Francisco office of law firm Keller and Heckman LLP. “FDA never issued a regulation covering ‘natural’ claims in general but adopted an informal policy years ago that defines ‘natural,’ ” she says.

That definition, according to Krasny, is determined as meaning “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 the food.”

An example: If beet juice is used to color beets, it’s a natural colorant. If the same beet juice is used to color tortilla chips, it’s no longer a natural color additive.

“Natural” has enough of a draw that Annie Christopher used it to name her company. But she doesn’t define the term either, simply noting in promotional material “Annie’s uses only simple natural and organic ingredients, no icky additives or pesky preservatives.”

Despite their popularity, “all-natural” and “natural” labels are seen by other consumers as an attempt to cash in on the more stringent and better defined organic label. The more consistent truth, though less nefarious, is a desire simply to replace a core of increasingly shunned ingredients. Sweeteners for flavor and dyes and lakes for colors are perhaps the main targets for processors seeking such cleaner labels.

“We believe that some food products in U.S. supermarkets mistakenly claim ‘all-natural’ on the front or principal display panel even though vegetable or fruit juice coloring is present,” says Campbell Barnum, vice president of branding and market development for D.D. Williamson (www.ddwilliamson.com) Global Support Center in Louisville, Ky. “A compliant alternative could be to instead declare, ‘Made with naturally derived ingredients,’ assuming the other ingredients qualify.”

D.D. Williamson, maker of a full spectrum of natural colorants for 140 years, also is the exclusive distributor for ColorMaker, supplier of natural color blends derived from “agricultural/biological materials using conventional methods.”

The company points to a nearly 50-year-old conflict that sprang from the ability to commercially produce acetone-derived “synthetically made but chemically identical B-carotene” in 1960. While chemically it was indistinguishable from natural carotene, it was decided a new term — “color additives exempt from certification” — could be applied to both “natural colors” and “nature-identical” colors. The result was a dissolution of the legal term “natural color.” At least for a few decades. In other words, more confusion.

Seeing red

Today, this loose net does more harm than good to processors facing a demanding and skeptical public. The majority of consumers polled want stricter definitions of “natural” as they seek products free of synthetics.

The most definitive example of a targeted synthetic colors in foods and beverages would be Red 40. The drive to ditch this ingredient pariah has been increasing as studies continue to try to determine whether or not such artificial colorants have neurological effects on humans, especially children (i.e. increasing risk of autism or ADHD).

While the science is being sorted out, the public is not in the mood to wait. Consumers increasingly are rejecting products with these chemical additives. In some ways, the black and white approach to color has only made the situation more gray.

“Within the regulatory framework of the U.S. Code of Federal Regulations, there is really no such thing as a natural color,” says Winston Boyd, vice president and chief chemist for Lawrence Foods Inc. (www.lawrencefoods.com), Elk Grove Village, Ill. “Any added color is defined as artificial, except in the instance where the color itself is natural to the food system.”

Caramel coloring lends yet another hue to the “natural” chiaroscuro. Caramel color “does not require a certificate like FD&C colors,” according to a position paper released by colorant maker Sethness Inc. (www.sethness.com), Lincolnwood, Ill. Recognizing that, and the fact that “there is no ‘natural certificate’ for caramel color,” the paper points out “caramel color is mentioned as a ‘natural color’ in the May 2003 USDA Food Labels and Labeling Policy Book.”

USDA also allows caramel coloring to be listed directly by name without a qualifier, as in “caramel coloring added.” Sethness not only stresses the strictness with which it treats the term “natural,” it guarantees its products “contain no genetically modified proteins or DNA.”

ConAgra upped the ante in its long-running Healthy Choice line by adding All Natural Entrees

Even with the wide latitude to use the term natural, the desire to be above reproach is a necessity that became the mother of invention for ingredient manufacturers. Some of their primary goals, such as getting natural reds and yellows, created new opportunities for combining the functionality of color with nutraceutical value.

Turmeric — with well-researched anticarcinogenic properties — has long been a valued replacer for the increasingly shunned artificial yellows (specifically tartrazine, derived from coal tar). Similary, Lycored Ltd. (www.lycored.com), Orange, N.J., made significant strides in creating longer and stronger reds from its lycopene rich tomato extracts.

However, some naturally derived colors, such as violet, present difficulties in attaining a vividness beyond such traditional sources as berry extracts. Afton, Minn.-based Suntava Co. (www.suntava.com) has created a purple corn-derived line of vibrant purples and other colors in the violet to red spectrum from an ancient species of corn. Best of all, the company did so without resorting to genetic modification beyond the traditional cross-breeding of farmers throughout history. As with turmeric and tomato, Suntava’s colors also provide strong antioxidant nutraceutical value.

D.D. Williamson is expected to announce a certified organic blue from similar corn any day now.

Flavors au naturel

Suntava Co. recently created a vibrant purple colorant derived from an ancient species of purple corn. D.D. Williamson is expected to announce a certified organic blue from similar corn any day now.

Krasny remarks also that there is a regulation defining “natural flavor,” which permits processing steps that physically purify or isolate a flavor substance without changing its chemical composition. Yet flavorants bring to the forefront one of the most controversial issues surrounding the “natural” labels.

MSG (monosodium glutamate) is a looming target for alternatives due to perceived negative effects by consumers. While the science behind negative effects of MSG on consumers has proven inconclusive except where some studies with children are concerned, the flavor enhancer has slowly gathered enough of a negative image that many processors consider it worth replacing.

The thing about MSG is, it can be described as a natural flavor, derived from papaya. Moreover, consumers are starting to catch on that ingredients such as autolyzed yeast extract, torula yeast and hydrolyzed protein can be used as synonyms for MSG. (Processors should watch for a possible rising tide of public backlash against these ingredients.)

Sometimes, being natural and being accepted are two very different things. Look at high-fructose corn syrup. This is a sugar derived from corn, subject to great misinterpretation as processors ditch it for sucrose — which can actually have more fructose than HFCS does. At issue is the intensive, multistep chemical process with which HFCS is created from corn.

Taking the “Mr. Natural” approach to herbs poses a different set of challenges. “The most basic, usable form of an herbal ingredient is the herbal powder or tea — you begin with a either the whole plant or a plant part such as a root, bark, leaf or fruit and you simply dry it, mill it and sterilize it,” observes Emilio Gutierrez, vice president of technical services for BI Nutraceuticals (www.botanicals.com), Long Beach, Calif. But “an herbal powder, although quite popular for certain applications, would have many limitations in a food or beverage.

“The more versatile alternative is the herbal extract” Gutierrez continues. “The extract is typically clean of inert plant material such as cellulose, has degrees of concentration often tied to potency of natural components found in the plant and is standardized to guarantee lot-to-lot consistency.”

Look to the Future

“In September 2009, USDA’s Food Safety and Inspection Service (FSIS) published an Advance Notice of Proposed Rulemaking seeking public comment on criteria for making ‘natural’ claims for meat and poultry products,” states Leslie Krasny, of Keller and Heckman LLP, San Francisco. “This includes how best to coordinate FSIS’ regulation of ‘natural’ claims with the Agricultural Marketing Service’s ‘naturally raised’ marketing claim.  Comments are due by Nov. 13.”

According to Krasny, a key issue is whether USDA should adopt a flexible policy on “natural'” claims that would permit case-by-case consideration  and could be updated easily to cover new technologies and changes in consumer expectations, or should codify a definition through notice-and-comment rulemaking. But overall, Krasny notes, FDA has no immediate plans to issue a regulation defining “natural.” Stay tuned for updates.

But he also notes the challenge to using extracts is that “the more you process and tweak that extract, the further you may getting from its natural state.” While Gutierrez recommends communicating with the supplier about how the ingredient you are considering is made and extracted, and what carriers are used in the standardization, he strongly urges discussing any labeling intentions with the supplier to ensure the accuracy of any claims.

With the issue of ingredient sources creating problems for some processors, technology can provide an escape hatch. “Technical challenges in formulating all-natural products are relatively easy and usually can be solved or worked around,” says Boyd. “For example, solubility issues may be dealt with by the use of food-grade processing aides or functional ingredients, such as emulsifiers. According to regulations it’s not necessary to declare processing aides and functional ingredients, like carriers and emulsifiers, if they do not serve a broader purpose in the food formulation.

“This means it is entirely possible to use a color additive containing, for instance, polysorbate 80, potassium hydroxide, propylene glycol or other food-grade materials, and declare only the colorant on the label — i.e., ‘colored with Annatto Extract’ or ‘Beta Carotene for color,’ ” he continues. “If one is conscientious about the meaning of ‘all-natural,’ the presence of these materials represents a problem. But it is entirely possible to find naturally derived alternatives to many synthetic emulsifiers.”

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