While food companies and consumer advocacy groups agree that Americans have the right to know the contents of their food, the ideal level of transparency has been debated in legislatures, before courts and in comments to the U.S. Food and Drug Administration (FDA). Consumers have been attracted to foods labeled as “natural,” but they can turn litigious when they learn that “natural” foods may contain ingredients they to be “unnatural.”
Despite requests, FDA has long resisted defining how “natural” may be used in food and beverage marketing, resulting in confusion for companies and consumers alike. “The ‘natural’ thing has always been such a morass,” one Consumers Union analyst said in 2007. While FDA has sought information on the use of the term and promised to provide guidance, the lack of definition has led to companies regularly facing allegations that they intentionally mislead consumers by marketing their products as “natural.” Controversial ingredients include:
- Genetically modified organisms (GMOs). Consumers have worried about “Frankenfoods” for more than a decade, and advocacy groups and legislators have urged the federal government to adopt legislation mandating the disclosure of GMOs in food products. Studies have purported to show that consumers misunderstand GMOs and the implications of their presence in the food supply, and companies have resisted mandates to disclose GMO ingredients to avoid unnecessary consumer fear. Targeted foods include crackers, chips, yogurt, soups, sauces and vinegar. Some plaintiffs have extended GMO lawsuits to products derived from animals fed GMOs, such as a lawsuit challenging Sargento Foods‘ cheeses and another alleging Chipotle Mexican Grill‘s meats and dairy products are not “GMO-free.”
- Synthetic or artificial chemicals. Preservatives, artificial coloring and other synthetic ingredients are frequently targeted in “natural” putative class actions. High fructose corn syrup (HFCS) was regularly challenged for many years. In 2008, an FDA administrator reportedly said that the agency would object to the inclusion of the ingredient in a “natural” food, but a letter months later backtracked on that position. Some courts presiding over HFCS lawsuits stayed cases while waiting for FDA guidance.
- Pesticides. Plaintiffs have alleged that consumers interpret “natural” to mean that pesticides were not used in the food or beverage’s production. Some courts have been persuaded by the argument, while others have demurred on determining the meaning of “natural” by finding the question preempted by the federal Food, Drug, and Cosmetic Act.
New “natural” lawsuits are filed nearly every week, but the number may begin to taper off as more courts continue to dismiss or defer claims. While some “natural” lawsuits settle with an agreement to change packaging or for large sums, many claims are ultimately dismissed. Some courts have dismissed cases on the grounds that the plaintiffs failed to define “natural” in the absence of an FDA definition, and courts also frequently deny requests for injunctive relief because plaintiffs fail to show that they may purchase the product again. While these adverse decisions may eventually dissuade plaintiffs’ attorneys from filing new lawsuits, the onslaught of “natural” litigation seems unlikely to end until FDA demarcates “natural” and “unnatural.”