In a recent journal article, a Babson College marketing law professor discusses legal disputes over the labeling of food as “natural,” noting drawbacks of using courts as public policy developers on the issue. Ross D. Petty, “‘Natural’ Claims in Food Advertising: Policy Implications of Filling the Regulatory Void with Consumer Class Action Lawsuits,” Journal of Public Policy & Marketing, Spring 2015. Petty provides a history of the debate and litigation over use of the terms “natural” and “unprocessed” on food labels, beginning with U.S. Federal Trade Commission (FTC) actions against Sugar in The Raw® and Hawaiian Punch® in the 1970s. The article also details efforts by the U.S. Food and Drug Administration (FDA) and Department of Agriculture (USDA) to define “natural,” “synthetic,” “healthy” and “good source.” Petty highlights industry self-regulation, such as the processes established by the National Advertising Division of the Council of Better Business Bureaus, as a venue for…
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The Food Safety Authority of Ireland (FSAI) has issued a guidance note for industry discussing general legal requirements for use of the descriptors “artisan/artisanal,” “farmhouse,” “traditional” and “natural.” “Marketing terms are designed to resonate with consumers and are an essential part of business development in the food industry,” said Wayne Anderson, FSAI Director of Food Science and Standards. “Consumers need to be confident that the foods they purchase and consume are accurately and truthfully described on the label. Food businesses should also be confident that genuine descriptions of their food are not diluted in the marketplace by undefined marketing terms.” The labeling guidelines apply to products placed on the market after December 2016. See FSAI News Release, May 14, 2015. Issue 566
A California federal court has dismissed the claims in a putative class action alleging that Flowers Bakeries misrepresents its Nature’s Own® bread as natural, healthy and wholesome despite containing synthetic ingredients, including azodicarbonamide, the “yoga mat chemical.” Romero v. Flowers Bakeries, No. 14-5189 (N.D. Cal., San Jose Div., order entered May 6, 2015). The plaintiffs argued that the brand name “Nature’s Own,” pictures of “stalks of wheat and pots of honey” and statements such as “no artificial preservatives, colors and flavors” on the packaging of the products misleads consumers into believing that the products are “a natural food product, therefore connoting that [the products] are somehow more healthy and wholesome.” The court found deficiencies in the plaintiff’s complaint, noting that she failed to clarify which misrepresentation allegations applied to which products. “It is not the task of the Court or of Defendant to diagram the intersection between the challenged products…
A New York federal court has granted in part and denied in part a motion to dismiss a lawsuit alleging that Hain Celestial’s Earth’s Best® food and body-care products are deceivingly labeled as “organic,” finding that the Organic Foods Production Act (OFPA) does not preempt the plaintiffs’ claims. Segedie v. Hain Celestial Grp., No. 14-5029 (S.D.N.Y., order entered May 7, 2015). The plaintiffs challenged 69 food products and 20 body-care products labeled “organic,” “natural” or “all natural,” arguing that they contain ingredients inconsistent with the company’s claims. In assessing precedent on preemption, the court found that a federal agency’s approval of a label does not bar any challenge to that label. The court also determined that the plaintiffs’ claims were legally sufficient as to both the “organic” and “natural” challenges. Hain argued that the ingredients in question were subject to an exemption under OFPA because they were nutrient vitamins or…
Skinnygirl Cocktails, LLC and a consumer have filed a joint stipulation of dismissal in a lawsuit alleging that the company and its reality-TV star founder, Bethenny Frankel, mislabeled its Margarita cocktail as “natural” despite containing the preservative sodium benzoate. Langendorf v. Skinnygirl Cocktails, LLC, No. 11-7060 (N.D. Ill., joint stipulation of voluntary dismissal with prejudice filed May 5, 2015). The joint stipulation comes after the court refused to certify the class in October 2014, finding that the plaintiff failed to show that the class was ascertainable and that the plaintiff was not a suitable representative for the class due to a personal relationship with her counsel. The stipulation does not indicate whether the parties reached a settlement. Additional information about the denial of class certification appears in Issue 544 of this Update. Issue 564
A Vermont federal court has denied a preliminary injunction that would have prevented from taking effect the nation’s first state law requiring the labeling of food products manufactured with genetically modified organisms (GMOs). Grocery Mfrs. Ass’n v. Sorrell, No. 14-0117 (D. Vt., order entered April 27, 2015). Several food industry groups challenged the statute’s provisions requiring GMO labeling and preventing foods with GMO ingredients from bearing a “natural” label. The court first examined the industry groups’ claim that the statute violates the dormant Commerce Clause of the U.S. Constitution. It agreed with the groups’ argument that the statute seems to prohibit the use of “natural” in signage and advertising “regardless of where or how those activities take place,” and accordingly refused to dismiss Vermont’s motion to dismiss that aspect of the Commerce Clause claim. The rest of the Commerce Clause claims, based on the argument that the statute would require…
A California federal court has granted in part and dismissed in part a motion to dismiss a putative consumer class action against The Hain Celestial Group alleging that the company mislabels its Sunflower Dream Drink as “all natural” despite containing artificial or synthetic ingredients, including xanthan gum and folic acid. Anderson v. The Hain Celestial Grp., Inc., No. 14-3895 (N.D. Cal., San Jose Div., order entered April 8, 2015). Hain challenged the plaintiff’s standing to sue for the alleged mislabeling of “substantially similar” products she did not personally purchase as well as standing for injunctive relief because she did not indicate that she would purchase Sunflower Dream Drink again. The court disagreed with the first argument, finding that the products the plaintiff did not purchase are substantially similar because they feature the same “all natural” representation and contain artificial, synthetic or extensively processed ingredients. Discussing the argument against standing for an…
A consumer has filed a purported class action against Natural & Tasty LLC alleging that the company misleads consumers by labeling its Goldbaum Quinoa Crisps® as “All Natural” and free of genetically modified organisms (GMOs) despite containing ingredients made from corn and soy because “almost all corn and soy grown in the United States are grown from seeds that have been genetically modified.” Slavinski v. Natural & Tasty LLC, No. 15-80451 (S.D. Fla., filed April 7, 2015). The complaint asserts that nearly all U.S. corn and soy are grown from GM seeds, “and as such, almost all corn and corn-based, as well as soy and soy-based ingredients in the United States are in fact unnatural, synthetic, artificial, and genetically modified ingredients.” The plaintiff points to several ingredients in the quinoa product as unnatural, including maltodextrin, whole grain corn flour, corn starch, and vegetable oil. While similar lawsuits have cited the reasonable…
A Florida federal court has granted in part and denied in part a motion to dismiss a putative class action alleging that Snyder’s-Lance, Inc. misleadingly labels its pretzels and chips as “natural” despite containing “unnatural genetically-modified organisms (‘GMOs’) and, in many cases, other unnatural artificial and synthetic ingredients.” Barron v. Snyder’s-Lance, Inc., No. 13-62496 (S.D. Fla., order entered March 20, 2015). The court first found that the plaintiffs sufficiently pled economic harm because they paid a premium price based on the “natural” representation on the labels; requiring them to compare rival products on the dates and at the locations that the plaintiffs purchased Snyder’s-Lance products would be “both impractical and impracticable. Unsurprisingly, it is also unsupported by law,” the court said. Summarizing precedent on the issue, the court then determined that the plaintiffs offered enough of a definition of “natural” to survive the pleadings stage. The plaintiffs’ allegation “that a reasonable…
A California federal court has approved the proposed settlement in a class action alleging that Jamba Juice® mislabels its smoothie kits as “all natural” despite containing synthetic ingredients gelatin, xanthan gum, ascorbic acid, steviol glycosides, and modified corn starch. Lilly v. Jamba Juice Co., No. 13-2998 (U.S. Dist. Ct., N.D. Cal., settlement approved March 18, 2015). The December 2014 proposed settlement was reached three months after the court certified the class for liability but not for damages. Under the agreement, Jamba Juice® will remove “all natural” on the product packaging and the company website by March 31, 2015. Additional information about the settlement appears in Issue 547 of this Update. Issue 559
