[author: Isabelle Chivoret]

Recently, courts weighed in on the controversy over using the very used and popular claim “all natural” on new U.S. food products containing genetically modified organisms (GMOs). Indeed, some plaintiffs filed class action lawsuits against major food manufacturers, claiming that they engaged in unlawful, deceptive, and misleading practices in violation of law by marketing their products as “all natural,” “natural,” or “100 percent natural.” Plaintiffs alleged that the “natural” statement misleads and deceives consumers because it suggests that products contain only natural ingredients when in fact the products contain GMOs. The popular products targeted in class action lawsuits for using a “natural” label are Campbell’s vegetable soup, Naked label’s juice, ConAgra’s Wesson oils, Puffins-brand cereal, Tostitos®, SunChips®, and Fritos Bean Dip® products.

The issue. The issue is always the same: whether and under what circumstances food products containing GMOs may or may not be labeled “natural.” However, there is an overall lack of consensus on the understanding of what the word “natural” means. Though the Food and Drug Administration (FDA) does not provide a formal definition of the term (I), it is possible to discern the controversy in the courts (II).

I. The absence of FDA’s formal definition of the term “natural”

Although the FDA seems to recognize the importance of formally defining this term, the FDA has declined to adopt a formal definition. In 1993, the agency published non-binding guidance defining the term “natural” on food labels to mean “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.” 58 Fed. Reg. 2302, 2407 (Jan. 6, 1993)

However, such a definition does not have the force of law. The FDA has thus refrained from instituting a direct regulation or federal requirement requiring companies to disclose GMOs as “unnatural” ingredients on its product. The FDA recognized that use of the term “natural” on (a) food label is of considerable interest to consumers and industry, but the FDA concluded that none of the comments provided the FDA with a specific direction to follow for developing a definition for use of the word “natural.” 58 Fed. Reg. 2407 (Jan. 6, 1993)

Recently, the FDA provided consumers the following explanation of the meaning of “natural” food labels:

From a food science perspective, it is difficult to define a food product that is 'natural' because the food has probably been processed and is no longer the product of the earth. That said, the 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.”

II. The controversy in the courts

Several recent lawsuits were filed against companies whose products contain GMOs and are advertised as “all natural.” Then, federal district courts narrowed “all natural” claims over products that contain GMOs. In most cases, courts refused to certify the few lawsuits filed against food companies that use the term “natural” on a product that contains GMOs, and stay their cases pending a decision by the FDA.

For instance, a U.S. District Court in Colorado is staying a case against General Mills for natural labeling on its Nature Valley Granola Bars until the FDA weighs in. Plaintiffs assert that General Mills’ products are not “100 percent natural” or “natural” because the products contain “highly processed and non-natural sugar substitutes high-fructose corn syrup and high-maltose corn syrup, as well as the highly processed and non-natural texturizer maltodextrin.” Chin v. General Mills, Inc., 2013 U.S. Dist. LEXIS 77345 (D. Minn. May 31, 2013)

In July, a California judge decided to postpone any action for six months, asking the FDA whether and under what circumstances food products containing ingredients produced using bioengineered ingredients may or may not be labeled as “natural,” “all natural,” or “100 percent natural.” Gruma Corp. v. Mexican Rests., Inc., 497 Fed. Appx. 392 (5th Cir. Tex. 2012)

On the other hand, the Eastern District of New York has granted in part the motion to dismiss filed in a similar putative class action in August. In this case, plaintiffs alleged that Frito-Lay North America and PepsiCo., its parent, mislead consumers by labeling various Tostitos®, SunChips® and Fritos Bean Dip® products as “all natural.” Judge Mauskopf notably justifies the court's decision with the fact that there was no telling how the FDA would define the term, and that the FDA is “unlikely to respond in a timely manner.” In re Frito-Lay N. Am., Inc., 2013 U.S. Dist. LEXIS 123824, 2013 WL 4647512 (E.D.N.Y. Aug. 29, 2013)

In this context, the FDA should define the term “natural” in a legal sense when manufacturers label food products containing GMOs. It seems necessary to resolve the controversy of using “all natural” with GMOs, all the more since this term is of great significance in the marketplace and this type of definition being up to the FDA. (See 65 Me. L. Rev. 581).