Legal Blog

Saturday Side Hustle: What is “Natural”?

So, with food labels more prevalent than ever, how did all these lawsuits arise? Well, the FDA, the agency charged with the task of telling us all what words on most manufactured food labels What’s “natural?” When it comes to food labeling, nobody seems to know, and if you pretend you do, you might get sued.

A recent market trend when food shopping is a greater increase in seeing words like “natural,” “100% natural,” “all natural,” or “made from natural ingredients” on food product packages. Even though nobody knows what that may mean (at least legally), they seem to like it. So…how does that work?

There have been several class action lawsuits filed by career plaintiffs in recent years in courts that have a history of entertaining claims that consumers were misled by words like “natural” on food products. There have been many multi-million-dollar settlements between large food companies and consumers who claimed products were misbranded as “natural,” despite the presence of ingredients like high fructose corn syrup, citric acid or synthetic vitamins.

So, with food labels more prevalent than ever, how did all these lawsuits arise? Well, the FDA, the agency charged with the task of telling us all what words on most manufactured food labels mean, has not yet told the country what “natural” means. However, in response to citizens’ petitions, the FDA did solicit public comments on the use of this ambiguous term on food labeling back in 2015.

While we don’t have a definition just yet, the FDA Commissioner did promise last year that the agency would “try” to define the term “natural” for food labeling purposes. Informally, the FDA has alluded to concepts like “no artificial or synthetic additives or preservatives” when pondering this policy issue, but we are still waiting to see what the final rule is.

In the meantime, here are some ideas to consider:

  • As a rule of thumb: don’t call your food “natural” if it contains genetically modified organisms (GMOs) – the FDA has also been asked to define “GMO” itself.
  • Don’t call your food natural if it contains synthetic ingredients. Interestingly, the U.S. Department of Agriculture – the agency that oversees the National Organic Program (NOP) – provides for “allowed synthetics.” Ask yourself: if it’s good enough for the NOP, is it good enough to be called “natural”?
  • And finally, consider: what if you make dairy products using milk from cows, procured in the good old-fashioned way by farmers, but the cows might have been eating GMO corn or soy? What if one of said cows produced offspring that had never seen a GMO crop and you got your milk from that offspring? Where does it end?

Hopefully, that last example illustrates the scope of what you might be dealing with legally if you are at a point in the supply chain where you have to consider your inputs.

One other thing you can do is define “natural” yourself and notify your customers of that definition, which shifts the burden downstream. If customers are comfortable with your definition, great; if not, at least you told them what you mean. I don’t necessarily recommend this approach, especially if you aren’t B2B, but it’s a thought.

 

For more information on this topic, please contact Scott Lloyd at slloyd@offitkurman.com.

 

ABOUT SCOTT LLOYD

slloyd@offitkurman.com | 301.575.0357

Scott Lloyd is a registered patent attorney who specializes in intellectual property counseling and commercialization work. He has served as a technology commercialization specialist and advisor to companies in a diverse array of markets, including biotechnology, pharmaceuticals, medical devices, food and beverage, specialty chemicals, technology, and engineering. In addition, Mr. Lloyd spent ten years as in-house general counsel to small and mid-sized companies, where he managed corporate matters and resolved commercial disputes in addition to intellectual property strategy, and now serves in the same capacity for entrepreneurial clients. He serves as counsel to small and mid-sized business owners seeking to implement growth strategies and succession plans.

While in house, Mr. Lloyd has also contributed to the successful formation of international affiliates of domestic businesses as well as a $400,000,000 business acquisition.

 

 

 

 

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