Monthly Archives: June 2014

Consumer Reports Petitions FDA/USDA to “Prohibit the Use of the ‘Natural’ Label on Food”

Consumer Reports is sponsoring a petition to the FDA and USDA to prohibit use of “natural labeling” on food products.  Consumer Reports believes such labeling is misleading because it is used on products that most consumers would not view as “natural.”

Even though the Food and Drug Administration does not object to the use of the term “natural” if “nothing artificial or synthetic” is added, there’s no definition for the term, which essentially means no regulation and no oversight.  As a result, “natural” processed foods can include ingredients from nature that are processed into artificial ingredients and may also come from plants grown with toxic pesticides, bioengineered seeds, and chemicals processed with synthetic solvents.  Meat labeled as “natural” can come from animals that were raised with daily doses of antibiotics and other drugs, given artificial growth hormones, fed genetically engineered soy and corn feed and other artificial ingredients and continually confined indoors.

Consumer Reports then cites the results of a recent consumer survey which suggests that most consumers view the “natural” label as excluding the foregoing practices and ingredients.   Thus, “[t]oo many people believe they’re avoiding toxic pesticides, artificial growth hormones, and GMOs when they buy food labeled ‘natural.’”

The petition therefore urges (a) the USDA to add the following section to 9 CFR 412.1: “The term “natural” may not be used on labeling for meat products and poultry products” and (b) the FDA to add the following section under 21 CFR 101 General Provision for Food Labeling: “The term ‘natural,’ or any derivation of the term, such as ‘naturally grown,’ ‘naturally sourced,’ or ‘from nature,’ is vague and misleading and should not be used.”

Consumer Reports certainly has a point.  There is no question that the term “natural” is vague and subject to different interpretations.  And there are certainly food products with questionable “natural” claims when compared to the expectations of a reasonable consumer.   Moreover, as I wrote in January, the FDA has no interest in crafting a formal definition of the term “natural.”  It recognizes that such a task means traveling down the proverbial rabbit hole in a potentially vain effort to  issue a regulation or formal guidance on this amorphous term.  It noted that engaging in this process requires it to consider, among other things, “relevant science; consumer preferences, perceptions, and beliefs; the vast array of modern food production technologies in addition to genetic engineering (e.g., use of different types of fertilizer, growth promotion drugs, animal husbandry methods); the myriad food processing methods (e.g., nanotechnology, thermal technologies, pasteurization, irradiation); and any strictures flowing from the First Amendment.”  (Emphasis added)

The Consumer Reports’ petition seeks to avoid these complications by simply banning all uses of “natural” labeling.  But this approach tosses the baby out with the bath water.  Specifically, banning all uses of “natural” precludes uses of “natural” in cases where it is plainly not false or misleading.  In this regard, the petition also appears to bar all uses of the term, no matter how narrowly drawn.  These points raise First Amendment concerns and concerns about the regulatory authority for the proposed regulations.  Notably, if the petition sought to prohibit natural labeling only as to certain types of food products, ingredients, technologies and/or processes, then it would be creating a de facto definition of natural that brings with it all the complications the FDA wants to avoid.

In light of the foregoing, I doubt the FDA or USDA will view this petition any differently than petitions asking for a formal definition of “natural.”  As I told NPR,  “[t]his is not a health or safety issue for them” and not high on the agency’s list of priorities.”

Supreme Court Rules 8-0 In Favor of POM Wonderful

The Supreme Court has ruled 8-0 in favor of POM Wonderful in its lawsuit against Coca-Cola with respect to its Minute Maid “Pomegranate Blueberry” juice blend.   I am fortunate to have been quoted in numerous articles discussing today’s ruling.

USA Today – “Justices: Coke’s Pomegranate Juice Not the Real Thing.”

CBS News Moneywatch – “In Juicy Battle with Coke, Supreme Court Sides with POM.”

Washington Post – “Supreme Court says Coca-Cola can be sued over Juice Drink Label.”

Food Navigator – “POM Wonderful scores ‘resounding victory’ at Supreme Court, But What Does it Mean for Your Label?”

National Law Journal – “Supreme Court Closes Safe Harbor in False Advertising Wars.”

 

Hershey’s Not Amused By Pot-Infused “REEFER’S” Peanut Butter Cups

Hershey’s also just filed a very similar lawsuit against pot-infused candy makers in Colorado.  See here.  For obvious reasons, Hershey’s is not amused by sales of pot-infused candy products that plainly trade on its well-known trademarks and packaging.  While mimicking popular candy brands might have been popular for illegal marijuana products, that practice will likely fade very quickly for regulated dispensaries.