Last month I wrote about the Court’s preliminary ruling in the class action lawsuit targeting Gruma Corporation with respect to labeling its Mission® tortilla chips as “All Natural” despite the presumable presence of GMO corn. The court stated its view that deference to the FDA appeared to be the appropriate course in light of the primary jurisdiction doctrine but allowed supplemental briefing before it rendered a final ruling.
On July 11, the Court that ruling final, noting a “gaping hole” in the FDA’s regulations. On the one hand, the FDA has reaffirmed “its decision to not require special labeling of all bioengineered foods.” But on the other hand, “[w]ith respect to the use of the term ‘natural’ on food labels, the agency has published non-binding guidance defining that term to mean that ‘nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food.'” Thus, “the FDA has not addressed, even informally, the question of whether foods containing GMO or bioengineered ingredients may be labeled ‘natural’ or ‘all natural,’ or whether GMO or bioengineered ingredients would be considered ‘artificial or synthetic.’”
In other words, “there is no direct regulation by the FDA of the term ‘natural,’ nor any requirement that a company disclose on a food product’s label whether it contains GMOs.” Significantly, for purposes of the primary jurisdiction doctrine, the Court found that the FDCA and NLEA unquestionably and squarely give the FDA authority to determine whether food labels may properly state that GMO products can be labeled “all natural.”
Accordingly, the Court referred to “the FDA, for an administrative determination, the question of whether and under what circumstances food products containing ingredients produced using bioengineered seed may or may not be labeled ‘Natural’ or ‘All Natural’ or ‘100% Natural.’” The case was stayed for six months with the potential for additional extensions of time based on good cause, including an indication from the FDA that it intends to resolve this issue.