In a January 24 court filing in a deceptive marketing lawsuit (Cox vs Gruma Corp 4:12-cv-6502) over ‘all-natural’ claims on its tortilla chips, Gruma said it was not impressed by a letter the FDA recently sent to the judge handling the case.
In a January 6 letter (click here ) sent to US district judge Yvonne Gonzalez Rogers and two other judges handling similar cases, the FDA said that if it were to change its policy on natural, it “would likely embark on a public process such as issuing a regulation or formal guidance” and “would not do so in the context of litigation between private parties.”
The agency also noted: “Any definition of natural on food labeling has implications well beyond the narrow scope of genetically engineered food ingredients” and pointed out that “in a world with limited resources”, it has bigger fish to fry.
Gruma Corp: We’re going to refile our motion to dismiss this case
But Gruma’s attorney David Ongaro, a partner at the San Francisco office of law firm Thompson & Knight, insisted that the letter, "if anything, reinforces why the FDA should be the one to resolve this issue".
He added: “This is particularly true because the same issue of whether products which include food derived from bioengineered seeds may be labeled ‘natural’ has been raised in more than 50 other cases and resolution of the issue by the courts will be subject to inconsistent determinations and disruptions of interstate commerce.”
This issue has been raised in more than 50 other cases
Meanwhile, he said: "This court should set a date for Gruma to re-file a motion to dismiss and then proceed to consider Gruma’s grounds for dismissal… based on existing legal precedents and in light of the FDA’s reaffirmation of its long-standing statements.”
If the Grocery Manufacturers Association (GMA) files a citizen’s petition asking the FDA to permit GMOs to be used in all-natural products , or if the FDA or other federal bodies take action on this issue independent of a GMA petition - “Gruma believes it would be appropriate for the Court to re-invoke the doctrine of primary jurisdiction”, he added.
“Especially given this Court’s previous findings that this issue is squarely within the FDA’s regulatory authority.”
Plaintiff: Court is well-equipped to handle this case, so let’s get on with it
However, in a January 31 rebuttal, plaintiff Elizabeth Cox said: "While FDA expressly declined to determine whether GMOs may be labeled 'all-natural,' it did not prohibit or discourage the courts from resolving the issue on their own.
"This court is well-equipped to determine whether labeling Mission Corn Tortilla Chips as 'All-Natural' when they are made from genetically modified corn is likely to deceive reasonable California consumers."
Natural claims and legal confusion
The issue of whether GMOs belong in ‘all-natural’ products - which is at the center of a growing number of lawsuits vs big brands - has featured heavily in the debate over GMO labeling, with some state-led GMO labeling initiatives (eg.Prop 37 in California) stipulating that products containing GMOs should not be labedl as ‘natural’.
While anti-GMO activists say GMOs are a text-book example of something 'unnatural’, others argue there is nothing ‘natural’ about conventional plant breeding techniques either - and that none of the food crops grown commercially today would have occurred ‘naturally’.
Click here to find out more about a Feb 13 webinar hosted by Perrin Conferences on all natural claims on food labels hosted by FoodNavigator-USA editor Elaine Watson.