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Food Companies Defend 'Natural' In Court


When you read a food label, the words you see go into two different mental categories: Advertising hype or fact-based claim. If the word is something like "great" and "amazing" or "new," that goes in the former. If the word is "organic" or "100% whole grain" or "fat free," that's information for the latter.

So, where does the word "natural" go?

By this point, you should know to ignore "100% natural" claims on food labels. Since there is no regulation regarding how the phrase is used, it means precisely nothing. And that's a problem. But rather than the FDA stepping in to solve the problem, a rash of lawsuits heading to court.

In 2013, Pepsi was sued for putting "natural" on their line of Naked juices. They settled for $9 million and removed the phrase. Earlier this year, Kellogg's settled their own lawsuit for $5 million and removal of the word. One by one, major food producers are finding their way into courts to defend their use of the word.

However, these cases aren't all slam dunks. In California last month, two lawsuits regarding "natural" labels were thrown out of court. The first (Richards et al. v. Safeway, Inc.) claimed that the company's "100% natural" waffles contained a synthetic ingredient. The second (Morales et al. v. Kraft Foods Group, Inc.) has to do with the company's "Natural Fat Free Cheddar Cheese" containing artificial coloring. In both cases, the judge dismissed them, but also allowed plaintiffs to come back within two weeks to refile. Turns out, this ability to refile is important.

"It is very important when the court allows that to happen," says Michele Simon from Eat Drink Politics, who tracks label laws around the country. "The fact they're saying go ahead and try again makes a big difference."

The problem most likely has to do with the specificity of their claims. If the judges felt these cases were baseless, they'd be completely dismissed. But because the plaintiffs are allowed to go back to the drawing board and refile means both cases will most likely wind up back in court. And when they do, they'll have plenty of company.

See: This is old hat for Northern California's federal court system. The courts have been so log-jammed with label-based fights, the district has somewhat derisively been dubbed "The Food Court." And the defendants that find themselves constantly in court over these issues are not pleased:

"Hyper-technical does not begin to describe this litigation," says William Stern, a partner with Morrison & Foerster, a San Francisco-based corporate law firm seeking to have several of the suits dismissed on behalf of Unilever and other clients. "Trivial," Stern adds, "might be a better word."

However, the problem is that there currently isn't a better way.

"People are waking up to the fact that most processed foods are not good for you, and the processed food industry is desperate to keep customers buying their unhealthy products," said Simon. "The FDA's asleep at the wheel, not doing anything about the word 'natural' being undefined. So, we have the court system stepping in to clean up the marketplace. It's not a perfect system, and it's not ideal for that to be the solution to the problem, but that's what we have."

The rash of lawsuits started years ago, when the GMO labeling movement began in earnest with California's Prop 37 in 2012. The language in the proposition would have forced producers to remove "natural" if their product contained GMOs. When that initiative failed, people began taking matters into their own hands through the court system by going after companies one by one.

How many? Simon has seen estimates of roughly 200 lawsuits filed across the country regarding food labels, a large portion of them specifically about the use of the word "natural." Sure, sometimes these are cases put together by lawyers reading the high-profile cases mentioned above (Pepsi and Kellogg's) and trying to make a few extra bucks through a quick settlement. But the bigger issue is that the courts are currently the only way to police the use of "natural."

One of the reasons the FDA may never enter the fray is that the fight over the word is being framed as a First Amendment issue. The argument goes: "Natural" is an advertising slogan like "great" and "fantastic," not a to-be-regulated claim like "organic." (Not that the FDA is the best solution. "There are significant political problems with the FDA stepping in," said Simon. "They don't always get it right.") The problem is that consumers don't necessarily agree.

To most, if a label contains the word "natural," the product surely has undergone testing to make such a claim. This simply isn't true. Because of that clash between definitions and reality, label lawsuits will continue finding their way into court.

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