PepsiCo’s snacks business Frito-Lay has again been accused of deceiving consumers in a second lawsuit by making all-natural claims on its products which also contain genetically modified corn and vegetable oils.
The company faces legal proceedings in New York where legal firm Reese Richman LLP have filed a complaint on behalf of claimant Chris Shake.
In December, a similar class action lawsuit was brought by law firm Milberg LLP on behalf of Julie Gengo in the Central District Court of California.
Mr Shake alleges that Frito-Lay’s Tostitos and SunChips brands are misleading consumers by making claims on the packaging that they are “all natural” when in fact they contain corn and vegetable oils that have had their genetic code artificially altered in a laboratory.
Both cases are being brought under state consumer protection laws designed to safeguard consumers from deceptive acts and false advertising.
Food law attorney Jonathan W. Emord from Virginia-based legal firm Emord & Associates told BakeryAndSnacks.com that the latest claim could be more difficult for the claimant.
“New York is a less hospitable jurisdiction for this plaintiff than the one in California,” he said.
“In the absence of an industry or scientific standard for the term ‘natural,’ so long as the Frito-Lay definition is reasonable, it should enjoy a strong defence”
Regulation black hole
The US Food and Drug Administration (FDA) has not specifically defined what a food product needs to be considered natural.
However, it had issued a regulation in 1993, which had been relayed in warning letters more recently, that using “natural” on a food label is truthful and not misleading when "nothing artificial or synthetic (including all colour 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." (58 Fed. Reg., 2302, 2407 (Jan. 6, 1993))
The FDA has told our publications on a number of occasions that it has no plans to define the term ‘all-natural’ because of limited resources despite two previous petitions from the Sugar Association and bakery firm Sara Lee.
Emord doubted whether the latest case would change the FDA’s mind-set.
“It is unlikely that private litigation will suffice to define the term "natural" for the FDA,” he said.
In December, Frito-Lay company spokesperson Aurora Gonzalez told this site that the company was confident that the labelling on its packaging complies with all regulatory requirements.
She was asked today whether anything had changed since the latest case, but was unable to respond before publication.