The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has issued an advanced notice of proposed rulemaking (ANPR) to solicit public feedback on the conditions under which the agency should permit “natural” labeling claims for meat and poultry. The current FSIS standard states that minimally processed meat and poultry products can use the “natural” label if the product “does not contain any artificial flavor or flavoring, coloring ingredients, chemical preservative, or any other artificial or synthetic ingredient.” The agency is now considering whether to define the term “natural” or continue evaluating the claim on a case-by-case basis. It specifically seeks comments on “how best to coordinate FSIS’ regulation of ‘natural’ claims with the Agricultural Marketing Service’s (AMS) voluntary ‘naturally raised’ marketing claim standard.” FSIS will accept comments until November 13, 2009. See FSIS Press Release, September 11, 2009; Federal Register, September 14, 2009.
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The Third Circuit Court of Appeals has determined that federal food labeling law does not preempt the state law-based claims filed by a consumer who challenged Snapple’s designation of beverages containing high fructose corn syrup (HFCS) as “natural.” Holk v. Snapple Beverage Corp., No. 08-3060 (3d Cir., decided August 12, 2009). The appeals court reversed a lower court ruling dismissing the claims on the basis of implied preemption. The complaint, originally filed in state court, but removed to federal court in 2007 under the Class Action Fairness Act, initially asserted that Snapple products were not “All Natural” because they contained HFCS; they were not “Made from the Best Stuff on Earth”; and Snapple falsely labeled some beverages, naming them after fruit-juice varieties that were not actually in the beverages. The plaintiff alleged unjust enrichment and common law restitution, breach of express and implied warranties and violations of the New Jersey…
A putative class action filed in a California federal court against Snapple Beverage Corp. alleges that the company misleads consumers by labeling as “All Natural” products containing high fructose corn syrup (HFCS) and using the names of fruits for some products that “do not contain any significant amount of the fruit listed in the product’s name.” Von Koenig v. Snapple Beverage Corp., No. 09-00337 (E.D. Cal., filed March 4, 2009). The named plaintiff seeks to certify two subclasses of California consumers “to redress Defendant’s deceptive, misleading and untrue advertising and unlawful, unfair and fraudulent business acts and practices.” One subclass would involve those who purchased the company’s “All Natural Products” that contained HFCS; the other would include those who purchased “Fruit Products . . . which included the name or picture of a fruit in the product name or label but which did not contain a substantial amount of that…
A federal court in California has denied a motion to dismiss putative class claims that Arizona Beverage Co. deceptively labels its products as “100% Natural,” “All Natural,” or “Natural,” despite using high-fructose corn syrup as an ingredient. Hitt v. Arizona Beverage Co., LLC, No. 08-809 (S.D. Cal., order entered February 4, 2009). The complaint also alleges that those beverages with fruit in the name are deceptively labeled because they “do not contain any substantial amount of the fruit named on the label.” The defendants sought to dismiss claims that they violated consumer fraud statutes by contending that they are expressly and impliedly preempted under federal law. The court summarily ruled that the plaintiff’s claims were not expressly preempted because they do not fall within any of the express preemption provisions of the Nutritional Labeling and Education Act. The court also ruled that the claims were not impliedly preempted because (i) the…
A federal court has refused to dismiss putative class claims filed under California’s consumer protection law against a company that advertises its pasta sauce, which contains high-fructose corn syrup (HFCS), as “all natural.” Lockwood v. ConAgra Foods, Inc., No. 08-04151 (N.D. Cal., decided February 3, 2009). The defendant sought to dismiss the claims on preemption grounds and called for the class allegations to be stricken “because plaintiffs cannot prove reliance on a class-wide basis.” According to the court, the federal Nutrition Labeling and Education Act (NLEA) does not apply to the “complaint as currently pled. Plaintiffs do not allege that defendant’s pasta sauce contains artificial flavoring, coloring or a chemical preservative; rather, they allege that the ‘high fructose corn syrup’ is not produced by a natural process and therefore the pasta sauce is not ‘all natural.’” The court also found that the claims were not impliedly preempted because “Congress has explicitly stated…
The Agricultural Marketing Service (AMS) has issued a voluntary standard that livestock producers can use to verify “naturally raised” marketing claims with USDA. The standard apparently took into account more than 44,000 public comments from consumers, veterinarians, trade and professional organizations, national organic associations, consumer, agriculture and animal advocates, and retail and meat companies. AMS concurred with the majority of comments requesting “that the three core criteria proposed (animals raised without growth promotants and antibiotics and have never been fed mammalian or avian byproducts) should be a part of a naturally raised marketing claim standard,” but declined to further narrow the scope of the standard because the agency felt additional restriction would limit its usefulness. “A number of livestock producers make claims associated with production practices in order to distinguish their products in the marketplace,” according to AMS. “This voluntary standard will allow livestock producers to utilize AMS’ voluntary, third…
A California resident has filed suit against ConAgra Foods, Inc., alleging that it falsely advertises and labels its Healthy Choice® pasta sauce products as “100% Natural,” “Natural” or “All Natural” despite using high-fructose corn syrup (HFCS) to make them. Lockwood v. ConAgra Foods, Inc., No. 08-4151 (N.D. Cal., filed September 2, 2008). Claiming that “[t]he complicated process used to create HFCS does not occur in nature” and that “it is misleading to consumers to label products that contain HFCS as ‘Natural,’” the plaintiff seeks to certify a class of “All persons in California who purchased any of Defendant’s pasta sauce products containing High Fructose Corn Syrup, yet marketed, advertised or labeled as being ‘All Natural’, ‘Natural’ or ‘100% Natural’ during the ‘Class Period.’” According to the plaintiff, a number of common questions predominate over individual issues, including whether defendant misrepresented its ingredients, mislabeled its products or engaged in unfair and…
In a July 3, 2008, letter to the Corn Refiners Association, the FDA has indicated that products containing high-fructose corn syrup (HFCS) may be labeled “natural” if the synthetic fixing agent that is used in the HFCS production process does not come into contact with the high dextrose equivalent corn starch hydrolysate, which undergoes enzymatic reaction to produce HFCS. The fixing agent apparently holds the enzyme in place on a column and any unreacted agent is removed by washing before the starch hydrolysate is added. Thus, “we would not object to the use of the term ‘natural’ on a product containing the HFCS produced by the manufacturing process described” by a representative of the Archer Daniels Midland Co., who met with FDA at the request of the Corn Refiners Association in April 2008. The agency added, “we would object to the use of the term ‘natural’ on a product containing…
According to a news source, a federal court in New Jersey has dismissed claims that the manufacturer of a beverage containing high-fructose corn syrup (HFCS) deceived the public by promoting the product as “all natural.” The court apparently based its ruling on federal preemption, leaving it to the Food and Drug Administration (FDA) to define the terms “natural” and “all natural.” U.S. District Judge Mary Cooper reportedly stated, “This court will not determine that which the FDA, with all of its scientific expertise, has yet to determine, namely how the terms ‘natural’ and ‘all natural’ should be defined and whether either may be used on the label of a beverage containing HFCS. Instead, this court will allow the FDA, which has already set forth specific requirements for what must be included on beverage labels, to decide whether such a determination is necessary and warranted.” The ruling specifically applies to Snapple®…
An FDA administrator has reportedly told a media source that the agency “would object to the use of the term ‘natural’ on a product containing HFCS [high fructose corn syrup].” Food NavigatorUSA.com revealed in an April 2, 2008, article that its reporters had inquired about HFCS using an FDA system designed to assist manufacturers with the labeling process. According to Food Navigator, FDA Supervisor Geraldine June of the Office of Nutrition, Labeling and Dietary Supplements replied in an email that, “The use of synthetic fixing agents in the enzyme preparation, which is then used to produce HFCS, would not be consistent with our (…) policy regarding the use of the term ‘natural.’” “Moreover,” June added, “the corn starch hydrolysate, which is the substrate used in the production of HFCS, may be obtained through the use of safe and suitable acids or enzymes. Depending on the type of acid(s) used to obtain…
