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HFCS 'natural' drink not deceptive, rules court

By Lorraine Heller , 19-Jun-2008

A US federal judge has rejected a claim that the use of the term 'all natural' on Snapple drinks was deceptive because the products contained high fructose corn syrup (HFCS).

The case, which was decided on preemption grounds, was filed by judge Mary Cooper from the US District Court of New Jersey.



Stacy Holk, who had filed the suit on behalf of herself and other consumers, had maintained that the use of the term 'natural' was deceitful because the drinks contained HFCS, a "highly processed sugar substitute", which is created through "enzymatically catalyzed chemical reactions in factories".



Holk maintained she had paid a premium for Snapple's iced tea and juice drinks, and had received something "less than and different from what was promised and bargained for".



Defining natural



The discrepancy arises from the lack of a clear definition of the term 'natural' from the nation's Food and Drug Administration (FDA).



However, Judge Cooper said it is up to FDA, not the court, to define 'natural'.



"This court will not determine that which the FDA, with all of its scientific expertise, has yet to determine, namely how the terms 'natural' and 'all natural' should be defined and whether either may be used on the label of a beverage containing HFCS," wrote the court opinion.



"Instead, this court will allow the FDA, which has already set forth specific requirements for what must be included on beverage labels, to decide whether such a determination is necessary and warranted."



Previous clashes



This is not the first time that drinks firms have faced legal action for labeling drinks containing HFCS as natural.



Last year, both Cadbury Schweppes and Kraft faced lawsuits after making 'natural' label claims on 7Up and Capri Sun respectively. Both companies changed the labeling of their products before any legal action was taken.



FDA and HFCS



In response to the confusion surrounding the term in general and HFCS in specific, FoodNavigator-USA.com last year filed an inquiry with FDA, requesting the agency' opinion on the ingredient.



The agency's Geraldine June, supervisor of the Product Evaluation and Labeling team at FDA's Office of Nutrition, Labeling and Dietary Supplements, responded in an e-mail: "we would object to the use of the term 'natural' on a product containing HFCS".


"The use of synthetic fixing agents in the enzyme preparation, which is then used to produce HFCS, would not be consistent with our (…) policy regarding the use of the term 'natural'," she wrote.


"Moreover, the corn starch hydrolysate, which is the substrate used in the production of HFCS, may be obtained through the use of safe and suitable acids or enzymes. Depending on the type of acid(s) used to obtain the corn starch hydrolysate, this substrate itself may not fit within the description of 'natural' and, therefore, HCFS produced from such corn starch hydrolysate would not qualify for a 'natural' labeling term."


No regulation



However, although FDA told this publication that it would give the same response to anyone approaching it with the same question, the agency has made no moves to formalize its opinion in guidance to industry or rulemaking.



And only FDA, through the Federal Food, Drug, and Cosmetic Act (FFDCA), has the authority to regulate food and beverage labeling. There is no private right of action under FFDCA, meaning that it preempts any state course of action - as in this case.



Not a 'green light'



However, last week's ruling does not necessarily set a precedent on this type of case, according to Stephen Gardner, director of litigation at the consumer group CSPI, which was responsible for the threatened lawsuit against Cadbury Schweppes and which had also backed the lawsuit against Kraft.



"I doubt that other courts will follow it, because it is very much on the bleeding edge of preemption law, far ahead of what the Supreme Court has said," he wrote in an e-mail to FoodNavigator-USA.com.



And Ivan Wasserman, an FDA and FTC compliance lawyer and partner at Manatt Phelps & Phillips in Washington, DC, commented: "I do not think that this will be seem as some kind of 'green light' for marketers (to call products with HFCS 'natural')."



"I think the decision, if anything, maintains the status quo. There has been no change in FDA's 'position', and there has been no court decision holding that it is, or is not, misleading to claim a product with HFCS is 'natural'. So companies will continue to come to their own conclusion, and market their products accordingly."



He added that this decision does not preclude FDA from taking action against a particular product, or another court from reaching a different decision.



CSPI's Gardner also indicated that "we will keep suing companies outside New Jersey, so they should not take great comfort in having persuaded one judge."



The corn industry, however, has welcomed this ruling with open arms.



The Corn Refiners Association this week issued a statement reiterating its position that "HFCS can be labeled as natural… (it) contains no artificial or synthetic ingredients or color additives and meets FDA's requirements for the use of the term 'natural'".



FDA on natural



Although FDA provides no formal definition for 'natural', it does have a longstanding policy regarding the use of the term. This states that a 'natural' product is one that has not had any artificial or synthetic substances added to the product that would not normally be expected to be in the food - including artificial flavors or color additives, regardless of source.



FDA also does not currently restrict the use of the term 'natural' except on products that contain added color, synthetic substances and flavors as provided for in Title 21 of the Code of Federal Regulations (CFR), section 101.22.

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