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The U.K. Advertising Standards Authority (ASA) has upheld an advocacy group's challenge to the use of the term “natural” by Pret A Manger but rejected a challenge to the company’s advertising claim that its breads are fresh-baked at each location. Ads on Pret A Manger’s website and Facebook page claimed that the chain makes “handmade natural food,” “avoiding the obscure chemicals, additives and preservatives common to so much of the ‘prepared’ and ‘fast food’ on the market.” Pret A Manger argued that the ads did not imply that it uses only natural ingredients or that its food is additive- and preservative-free; rather, the terminology was used to express the company's mission, which is partly to “avoid (as opposed to entirely eliminate) ‘obscure’ (as opposed to all)” chemicals. ASA upheld the challenge, determining that consumers were likely to interpret the claims to mean that the chain’s food was “natural” and free from…

The U.K. Advertising Standards Authority (ASA) has upheld a complaint that a “100% Natural Ingredients” claim was misleading because the processing of the snack bar's ingredients did not comply with the Food Standards Agency’s (FSA's) criteria for use of the term “natural.” United Biscuits submitted a list of ingredients for its “Go Ahead Goodness” snack bars and asserted that all ingredients were made in a traditional manner. After ASA referred to FSA guidance, it determined that the refining of sunflower oil involves the use of chemical solvents and the process of creating reduced-fat cocoa powder involves the addition of potassium carbonate. Because the FSA guidance says neither the solvent extraction process nor the use of acid or alkali solutions is “in line with consumer expectations of ‘natural,’” ASA ruled that consumers would not consider the ingredients natural and that the advertisement was misleading.

A New York federal court has issued a decision seemingly aiming to spur action from the U.S. Food and Drug Administration (FDA), which has purportedly exhibited “no discernible activity” to establish a definition of “natural.” In re Kind LLC “Healthy and All Natural" Litig., No. 15-2645 (S.D.N.Y., entered March 2, 2018). Kind LLC previously filed motions to dismiss or stay claims in multidistrict litigation alleging that its labeling was false and misleading. After allowing stays, the court has indicated that it might proceed with the case without waiting for input from FDA or the U.S. Department of Agriculture (USDA) on the definitions of "healthy" and "natural." The court first found that the consumers' challenge to Kind's claim that its products are made without genetically modified organisms (GMOs) was not preempted by the National Bioengineered Food Disclosure Standard, holding that the relevant state consumer-protection statutes “do not impose a GMO standard or requirement.…

Utz Quality Foods Inc. has agreed to pay $1.25 million to settle a putative class action alleging that some products were labeled “natural” despite containing genetically modified organisms (GMOs) and synthetic ingredients. DiFrancesco v. Utz Quality Foods, Inc., 14-14744 (D. Mass., settlement agreement filed December 6, 2017). The complaint alleged the snacks contained GMO grains and synthetic ingredients such as caramel color, malic acid and citric acid. Class members will receive $2 for each qualifying purchase up to a total of $20 and residual funds will be paid to nonprofit group Consumers Union. Utz has also agreed to stop using the terms “natural” and “all natural” on labeling and advertising of the products.

A New York federal court has dismissed a false labeling suit against Dannon Co., finding "no legal support for the idea that a cow that eats [genetically modified organism (GMO)] feed or is subjected to hormones or various animal husbandry practices produces ‘unnatural’ products.” Podpeskar v. Dannon Co. Inc., No. 16-8478 (S.D.N.Y., entered December 3, 2017). The proposed class action alleged that Dannon falsely labeled 12 varieties of yogurt products as “natural” despite being produced with milk from cows raised on GMO feed. The court noted that the U.S. Food and Drug Administration is reviewing regulatory standards for the use of "natural,” but federal law does not require the products of animals fed GMOs must be labeled as containing GMOs. The plaintiff’s arguments were conclusory and “based on her own feelings,” the court noted, and the complaint did not allege that ­any ingredient used in the product is unnatural.

A federal court in New York has given final approval to the settlement of multidistrict litigation that alleged Frito-Lay North America, Inc. deceptively labeled and marketed its chip and dip products as “Made with All Natural Ingredients” when the products contained genetically modified ingredients. Frito-Lay N. Am., Inc., “All Natural” Litig., No. 12-MD-2413 (E.D.N.Y., entered November 14, 2017). Frito-Lay has agreed to modify its product labeling. While the class will not receive damages apart from $17,500 to class representatives, plaintiff's counsel will receive $1.9 million plus reimbursement of expenses up to $200,000.

Researchers have reportedly found that consumers are unsure what "natural," “organic” and “Non-GMO Project Verified” mean when the phrases appear on food labels. Konstantinos G. Syrengelas et al., "Is the Natural Label Misleading? Examining Consumer Preferences for Natural Beef," Applied Economic Perspectives and Policy, October 2017; Brandon R. McFadden, et al., “Effects of the National Bioengineered Food Disclosure Standard: Willingness to Pay for Labels that Communicate the Presence or Absence of Genetic Modification,” Applied Economic Perspectives and Policy, October 2017. To investigate a petition to the U.S. Department of Agriculture asserting that "natural" labeling misleads consumers, researchers conducted an online choice experiment to determine whether including a definition of "natural" on a label deterred or encouraged study participants to pay a premium for steak. The researchers apparently found that the participants were unwilling to pay a premium if they either identified themselves as familiar with the definition of "natural" or if they…

The U.S. Supreme Court has denied a petition for a writ of certiorari asking the court to resolve a split among circuit courts on the question of whether putative class action plaintiffs must propose an administratively feasible method to identify potential class members. Conagra Brands, Inc. v. Briseno, No. 16-1221 (U.S., denial entered October 10, 2017). The case centers on a consumer's allegation that Conagra Brands, Inc.'s Wesson cooking oil is mislabeled as "100% Natural" because it contains genetically modified ingredients. Conagra appealed a Ninth Circuit decision that joined the Sixth and Seventh Circuits in holding that independent administrative feasibility is not needed for a class action to succeed. The Second, Third, Fourth and Eleventh Circuits have allowed the additional requirement, which companies have used to argue that their putative class actions should be dismissed.

A consumer has filed a projected class action alleging Boar's Head Provisions Co. Inc. misleadingly markets its cheeses as "natural" despite containing genetically modified organisms (GMOs). Forsher v. Boar's Head Provisions Co. Inc., No. 17-4974 (N.D. Cal., filed August 25, 2017). The complaint asserts that GMOs are "not natural" and that "consumers do not expect [GMOs] to be present in foods labeled 'natural'"; further, "reasonable consumers do not believe there are any differences between foods that are labeled 'natural' and those that are labeled 'organic.' Reasonable consumers believe that 'organic' foods do not contain GMOs, and that foods labeled 'natural' are likewise free of such substances." The plaintiff seeks an injunction, restitution, damages and attorney's fees for alleged violations of state consumer-protection statutes as well as unjust enrichment and intentional misrepresentation.

A federal court has dismissed with prejudice a putative class action alleging that Quaker Oats’ use of “100% Natural” on its products misleads consumers, holding that the plaintiffs’ claims are expressly preempted by the Food, Drug and Cosmetic Act (FDCA). Gibson v. Quaker Oats Co., No. 16-4853 (N.D. Ill., entered August 14, 2017). The plaintiffs alleged that Quaker’s use of “natural” was misleading under several state statutes because the products contained residues of the herbicide glyphosate. The court held that nutritional and food labeling is governed by the FDCA, preempting the plaintiffs' state law claims, which were “attempting to challenge how food stuffs are marketed." In addition, the court held that the FDCA expressly governs the presence of pesticide and herbicide residues in food, “establishing a clear and manifest purpose that preempts state regulation of food labeling.” The court also found the plaintiffs had no standing to pursue claims related…

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