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What next for 'natural' claims? KIND urges court to leave issue with the FDA

By Elaine Watson+

25-Apr-2016

A recent ruling by the Court of Appeals for the Ninth Circuit on 'natural' claims has broad repercussions for the food industry
A recent ruling by the Court of Appeals for the Ninth Circuit on 'natural' claims has broad repercussions for the food industry

Snack maker KIND – which faced a wave of false advertising lawsuits* last year over its use of the terms ‘healthy’ and ‘all-natural’ – has urged a New York court to stay or dismiss the cases on primary jurisdiction grounds until the FDA official weighs in on the 'natural' issue.

In court documents filed on April 20, KIND noted that several other ‘all-natural’ lawsuits against defendants including Hain Celestial and Blue Diamond Growers have recently been put on ice on primary jurisdiction grounds in the wake of the FDA’s November 2015 announcement  inviting views on whether it is appropriate to define ‘natural’ on food labels, and if so, what the definition should be.

Ninth Circuit decision has broad repercussions for ‘natural’ lawsuits

It also noted the Court of Appeals for the Ninth Circuit's recent decision to stay a high-profile false advertising case against Chobani (Kane v Chobani LLC 2016 WL 1161782) over ‘natural’ and other claims on primary jurisdiction grounds.

KIND added: “Deference to the FDA’s ongoing regulatory process will avoid conflicts arising from court rulings in the natural cases pending across the country and instead allow the FDA to resolve the issues on a uniform nationwide basis."

The bigger picture: What next for ‘natural’?

So what does all this mean for ‘natural’ lawsuits?

The Ninth Circuit decision "ought to help stem the deluge of food mislabeling claims being filed by plaintiffs’ lawyers under California’s Unfair Competition Law," predicted Richard Samp, chief counsel at the Washington Legal Foundation.

However, it technically only buys time, as it is by no means certain that the FDA's probe into ‘natural’ will result in a new legal definition.

Ivan Wasserman, a partner at Manatt, Phelps & Phillips, LLP, for example, recently predicted  the whole 'what is natural?' question could ultimately end up in the 'too difficult' box , adding: "This is truly a no-win situation for the FDA."

Perhaps reflecting this possibility, the Ninth Circuit also acknowledged – in a footnote to its March 24 decision – that the District Court may at some point lift the stay on the Kane v Chobani case if “future events render the FDA’s apparently imminent resolution of the ‘evaporated cane juice’ and ‘natural’ issues illusory”.

At Annie’s we haven’t even used the term ‘natural’ on labels since the early 2000s because it doesn’t mean anything… I think that the natural products industry will move to organic. That’s where it’s going and it’s what consumers want.”

John Foraker, president, Annie's (see what other CEOs think in our 'natural' vox pop

No guarantee that FDA will come up with a new legal definition of ‘natural’

Another factor that may impact ‘natural’ claims on food labels, meanwhile, is the GMO labeling law in Vermont (effective July 1 ), as it prohibits the use of the term ‘natural’ on any products made with GE ingredients.

As many large CPG companies (ConAgra , Kellogg , Mars, Gen Mills et al) are now changing labels nationally to comply with the Vermont rules (in the absence of a federal GMO labeling rule) this may lead to a further reduction in ‘natural’ claims on labels, predict food law attorneys.

“A natural food should be defined as any food made exclusively utilizing ingredients that were widely available for human consumption before the Industrial Revolution.”

Anthony Flynn, co-founder & CEO, YouBar  (see what other CEOs think in our 'natural' vox pop )  

% of new US food/bev launches making natural claims is going down

The percentage of new foods & beverages launched in the US making 'natural' or 'all-natural' claims has dropped off slightly, falling from 13.76% of launches in 2013 to 12.63% of launches in 2014, and 11% of new launches in 2015, according to Mintel Global New Products Database figures shared with FoodNavigator-USA.   

This was likely due to multiple factors, from the threat of legal action, to the rise in organics (seen as a stronger claim), to the fact that some firms feel there are other ways to indicate naturalness (shorter ingredients list, clean labels, packaging design) beyond stating it on pack, and in part because claims are getting more specific, said Mintel's director, innovation & insight, Lynn Dornblaser.

 “Natural to me means a non-processed product with few, unadulterated ingredients. The ONLY products that satisfy these criteria are fresh produce and bottled water. I think we need to eschew ‘natural’ as a term because it has been misused widely and no longer has meaning. Instead we should focus on specific claims like non-GMO, no added sugar, and vegan.”  

Vincent Kitirattragarn, CEO, co-founder Dang Foods (see what other CEOs think in our 'natural' vox pop )

Annie’s president: ‘Natural’ doesn’t mean anything

Speaking to FoodNavigator-USA at Expo West last month, Annie’s president Jon Foraker also predicted that the term ‘natural’ would fade in importance as organic continued to gather pace, adding: “At Annie’s we haven’t even used the term ‘natural’ on labels since the early 2000s because it doesn’t mean anything… I think that the natural products industry will move to organic. That’s where it’s going and it’s what consumers want.”

George Gavris, CEO of frozen food brand Good Food Made Simple – which is transitioning to an organic platform – added: “All-natural is such an abused phrase that we’re removing it from all of our products. We want to be clear what we stand for and ‘all-natural’ is not clear.”

Click HERE  to read what food and beverage CEOs think 'natural' means.

Click HERE  to read some of the comments submitted to the FDA as part of its probe into ‘natural’ claims (the comment period closes on May 10).

*The case, which consolidates multiple class action lawsuits filed in different states, is no. 1:15-md-02645 in the southern district of New York. The plaintiffs alleges that selected KIND bars are not ‘all-natural’ because they contain ingredients from GM crops and ‘heavily processed’ ingredients such as soy lecithin.  They also allege that they do not meet FDA criteria for making ‘healthy’ claims as they contain too much saturated fat (click HERE ).  

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