I previously wrote about two U.S. District Courts which stayed class action suits targeting “all natural” claims in light of the primary jurisdiction doctrine. See here and here. Both courts deferred to the FDA’s “unique expertise and resources suited to resolving the issues presented by Plaintiff’s claims,” i.e., whether use of GMO ingredients precludes any use of “all natural” claims. The cases were 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.
Two other courts, however, rejected this approach because, in part, “various parties have repeatedly asked the FDA to rule on “natural” labeling, and the FDA has declined to do so because of its limited resources and preference to focus on other priorities.” See here.
The Grocery Manufacturers Association (GMA) is now urging the FDA to move forward and resolve the issue as requested by the two U.S. District Courts. In a letter dated December 5, 2013, the GMA asked the FDA, in light of the district court referrals, to “actively address this question through the rule making process” which will “bring uniformity and consistency to both consumers and food manufacturers.” In addition, the GMA noted:
GMA’s members have a strong interest in “natural” labeling for foods containing ingredients derived from biotechnology. Several of the most common ingredients derived from biotechnology are from crops such as soy, corn, canola, and sugar beets. There are 26 state legislatures considering whether foods containing ingredients derived from biotechnology should be labeled and whether they are permissible in “natural” foods. Moreover, there are approximately 65 class action lawsuits that have been filed against food manufacturers over whether foods with ingredients allegedly derived from biotechnology can be labeled “natural.” Given the predominant use of crops derived from biotechnology in our economy as well as consumer and state interest in this issue, whether foods that contain ingredients derived from biotechnology can be labeled “natural” is an important matter to GMA members and is one that warrants FDA’s involvement.
The FDA’s request comes on the heels of a letter from the Center for Food Safety to the FDA which provided a contrary view. Notably, the Center for Food Safety’s chief concern that the FDA might define “the term ‘natural’ for use on food labels in an ad hoc, fact-specific, and haphazard manner, per individual court request, lacking public process and general applicability.” It then requested basically the same relief sought by the GMA – that the FDA “should address this issue by defining “natural” through the rulemaking process provided for by the Administrative Procedure Act (APA), which requires that the agency provide notice of proposed rulemaking and an opportunity for the public to comment.” It added:
In the alternative, if FDA does choose to act in the context of litigation, we urge FDA to define “natural” in a way that prohibits the labeling of any food as “natural” that was produced in whole or in part through the process of genetic engineering or that contains ingredients derived from genetically engineered organisms.
The Center for Food Safety states that it represents the “food movement” and, in a press release issued after the GMA’s letter, added:
There is nothing natural about genetic engineering, which is exactly why the Grocery Manufacturers Association wants FDA to create a special exemption for it. Natural is a great marketing tool and the industry doesn’t want to be restricted in using it. FDA should not respond to GMA’s demands for a special GMO loophole. FDA has a duty to protect consumers, not industry.
Time will tell whether the FDA decides to accept the district court referrals, but color me doubtful.