7 notable lawsuits in the struggle to define natural
Filed in July 2012, two California moms sued parent company General Mills over marketing Nature Valley bars as “100% Natural,” even though they contain processed ingredients like high fructose corn syrup, high maltose corn syrup and maltodextrin. “General Mills seeks to capitalize on consumers’ preference for all-natural foods and the association between such foods and a wholesome way of life,” said the class-action lawsuit. “The name ‘Nature Valley’ itself directly conjures up images of naturalness.”
A Houston, Texas resident charged Naked Juice with a class action suit in 2011, claiming the company falsely advertised their juices as “100% Juice,” “100% Fruit,” and “All Natural,” yet contained ingredients like synthetic fibers to improve mouthfeel and artificially produced vitamins like calcium pantothenate (produced from formaldehyde). Plus, some ingredients are derived from genetically modified organisms, even though Naked Juice marked their products as “non-GMO.” The lawsuit also noted that Naked’s use of soy lecithin and soy protein isolate (GMO unless tested or USDA Organic) belied the company’s claim that they use only the “freshest, purest stuff in the world” in their products. “Soy lecithin, a lecithin derived from soy, is isolated as a gum following hydration of hexane-extracted soybeans,” the lawsuit explains. Although Naked Juice refuted these claims, in August 2013 parent company PepsiCo settled for $9 million and agreed to pay a maximum of $75 to Naked Juice consumers who could provide proof of purchase.
Dreyer’s was charged with misrepresenting its ice cream, (sold under the brands Dreyer’s, Edy’s, and Haagen-Dazs), as natural in 2012. Some Dreyer’s and Edy’s products contained the term “All Natural Flavors,” and some Haagen-Dazs products were labeled “All Natural Ice Cream,” according to the website, TopClassActions.com. Packaging ingredients on some flavors of Haagen-Dazs did not disclose that the company used the synthetic potassium carbonate rather than sodium carbonate to alkalize cocoa—a process used to dampen cocoa’s bitter taste. The court found “even if potassium carbonate is commonly used, that does not necessarily imply normally expected; a reasonable consumer may not have the same knowledge as, e.g., a commercial manufacturer.” In other words, “the presence of an artificial or synthetic substance is compatible with a ‘natural’ claim only if one can demonstrate that consumers normally expect the substance to be present,” wrote law food expert Ricardo Carvajal on FDA Law Blog. “Awareness of the presence of the substance among manufacturers is irrelevant."
Ben & Jerry's was the target of a class-action lawsuit alleging that the Vermont-based company misled consumers by calling it's ice cream "all-natural." Similar to Dreyer's, Ben & Jerry's alkalizes some of its cocoa with potassium carbonate in order to neutralize the bitter taste. "Treating cocoa with an alkalizing agent changes the chemical structure, taste, and appearance of cocoa and reduces its acidity and flavonal content," reads the lawsuit, filed in 2010. "In addition, the alkalized cocoa in Ben & Jerry's Ice Cream products was processed with and thus contains potassium carbonate, a recognized synthetic substance." But recently, Ben & Jerry's was awarded a victory. US district judge Phyllis J. Hamilton denied a motion for class certification, citing that Ben & Jerry's used a variety of cocoa suppliers—some of which used natural alkalizers. Consequently, there was no evidence as to which ice cream contained the alleged "synthetic ingredient", according to Law 360. Though Ben & Jerry's was victorious, when the suit was first filed, the Unilever-owned ice cream company voluntarily halted use of "all-natural" on their labels.
Despite Kashi's wholesome halo, a "natural" lawsuit was filed against the Kellog-owned brand in 2011. "Since at least 1999, defendants prominently displayed the promises 'all natural' and/or 'nothing artificial' on the fronts of labels of almost all of its products, cultivating a healthy and socially conscious image in an effort to promote the sale of these products," the complaint stated. "One product, Kashi's "All Natural" GoLean Shakes, is composed almost entirely of synthetic and unnaturally processed ingredients which included sodium molybdate, phytonadione, sodium selenite, magnesium phosphate, niacinamide, calcium carbonate, calcium phosphate, calcium pantothenate, pyridoxine hydrochloride, thiamin hydrochloride and potassium iodide." In 2013, the court certified the class action lawsuit, and a trial is scheduled to take place February 2014.
One class action lawsuit, filed December 2011, alleged that Frito-Lay (owned by PepsiCo) deceived consumers by emblazoning “all natural” on chip products including Tostitos and SunChips. The plaintiff cited the chips were made from genetically engineered corn and vegetable oils (including corn, soybean, and canola), and that he had paid a premium on those products under the assumption they did not contain GMOs. Cheaper chips also made with GMOs, such as Doritos, made no such natural claims. “The reasonable consumer assumes that seeds created by swapping genetic material across species to exhibit traits not naturally theirs are not ‘all natural,’” reads the claim. “A spokeswoman for Frito-Lay, Aurora Gonzalez, said the company was confident the labeling on its packaging ‘complies with all regulatory requirements,’” reported Reuters.
Tropicana Orange Juice, which marketed materials described as “100% pure and natural,” is misleading due to processing methods, argued a December 2012 class action involving seven plaintiffs. One of 20 lawsuits filed nationwide against the company, the website TopClassActions.com reports that they're partly in response to a 2009 book about the orange juice industry. Rather than making a “Grove to Glass” product, as Tropicana’s marketing materials suggest, orange juice is “pasteurized, de-aerated, stripped of flavor and aroma, stored for long periods of time before available to the public, and colored and flavored before being packaged,” the class action lawsuit says.
Tropicana Orange Juice, which marketed materials described as “100% pure and natural,” is misleading due to processing methods, argued a December 2012 class action involving seven plaintiffs. One of 20 lawsuits filed nationwide against the company, the website TopClassActions.com reports that they're partly in response to a 2009 book about the orange juice industry. Rather than making a “Grove to Glass” product, as Tropicana’s marketing materials suggest, orange juice is “pasteurized, de-aerated, stripped of flavor and aroma, stored for long periods of time before available to the public, and colored and flavored before being packaged,” the class action lawsuit says.
When boiled down, the natural products world has one unified goal. Make people healthier.
But our industry is not without impassioned debates about how best to reach this goal. A few hullabaloos of note: Should USDA Organic products be tested for genetically modified material? Does high pressure processing (HPP) maintain all the beneficial enzymes as raw? Are whole-food supplements superior? Should GMOs be labeled at a state or federal level?
These are important discussions. But perhaps the most disputed and publicized issue in our industry is the definition of "natural” or more accurately, the lack thereof. The FDA has no formal description; just a loose policy that says the term means “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.” This statement is obviously insufficient considering the ubiquity of GMOs and new technologies in food manufacturing.
It's unlikely the FDA will hammer down a definition anytime soon. Days ago the agency “respectfully declined” a plea for labeling guidance from three district court judges tied up in lawsuits disputing the correctness of “Natural,” “All Natural,” and “100% Natural” claims on food products. The trouble, says the FDA, is complexity. A definition would create a cascade of questions over whether other food processing methods such as nanotechnology, irradiation and pasteurization are natural—not just the pureness of ingredients.
“Thus, even if we were to embark on a public process to define ‘natural’ in the context of food labeling, there is no assurance that we would revoke, amend, or add to the current policy, or develop any definition at all,” continued the FDA.
Without this guidance, natural lawsuits have proliferated over the past few years. Scores of plaintiffs have launched class-action complaints that food manufacturers have misled consumers by labeling food products as natural, even though they may contain synthetic or artificial ingredients, or GMOs. (Some estimate there are nearly 65 "natural" lawsuits pending around the country.)
Here are a few notable examples.
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