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Heinz is latest target in new wave of false advertising lawsuits over ‘all natural’ claims and GMOs

By Elaine WATSON , 19-Mar-2014
Last updated on 21-Mar-2014 at 01:25 GMT

Heinz: 'We believe this to be a groundless lawsuit and we look forward to vigorously defending our products.'
Heinz: 'We believe this to be a groundless lawsuit and we look forward to vigorously defending our products.'

Heinz has vowed to vigorously defend itself after becoming the latest food giant to be targeted in a false advertising lawsuit alleging it is misleading consumers by describing products made from GM crops as ‘all-natural’.

In a complaint filed in California on March 17, plaintiff Debbie Banafsheha alleges that Heinz Distilled White Vinegar - which is marketed and labeled as ‘all natural’ - is not in fact natural because it is made from genetically modified corn.

She adds: “Defendant’s ‘all natural’ representations are false, deceptive, misleading, and unfair to consumers, who are injured in fact by purchasing products that Defendant claims are ‘all natural’ when in fact they are not.”

Defendant’s ‘all natural’ representations are false, deceptive, misleading, and unfair to consumers

While Heinz does not explicitly state that the corn used to make the vinegar is from genetically engineered crops, it is very likely that it is, alleges the complaint, given that more than 70% of corn grown in the US is GM.

“Defendant sources its ingredients from US commodity suppliers who supply GM crops. Large volume food manufacturers who wish to use non-GM ingredients must specifically source their crops, typically from Europe, or undertake the additional step and expense of purchasing and verifying the supply from non-GM growers through identity preservation programs.

“In most instances, manufacturers who purchase only non-GM crops for their products specifically label the products non-GMO.”

Banafsheha, who is represented by law firm Ahdoot & Wolfson, seeks to represent all consumers who purchased the product in California from March 17, 2010.

Michael Mullen, senior vice president of corporate & government affairs at Heinz, told FoodNavigator-USA: “While Heinz does not comment on pending litigation, we believe this to be a groundless lawsuit and we look forward to vigorously defending our products.”

Heinz: This is a ‘groundless lawsuit’

Heinz is just the latest in a series of food and beverage firms to be targeted in lawsuits alleging that GMOs do not belong in ‘all-natural’ products, joining industry giants including General Mills and Campbell Soup.

Justin Prochnow: I tell my clients that unless you've literally pulled it out of the ground yourself and stuck it in a box, don't call it all-natural."

While some of these cases were put on hold last year as judges asked the FDA to come to an administrative determination on whether GMOs belong in ‘natural’ foods, the FDA politely declined their request in January, and they are now back with the courts.

Similarly, while the GMA has said it will petition the agency to clarify this issue once and for all, many observers believe the FDA is unlikely to take action any time soon, despite the fact that more and more of these cases are clogging up the court system.

After two years, and all that money, tell me if you think that's a win

Speaking at the Natural Products Expo West trade show in Anaheim earlier this month, Greenberg Traurig attorney Justin Prochnow said: "If you're using GMOs and making natural claims, there's a good chance you'll get sued."  

Meanwhile, we have seen some “very erratic decisions from the courts” on this issue, he added: "I tell my clients that unless you've literally pulled it out of the ground yourself and stuck it in a box, don't call it all-natural."  

While defendants that are prepared to go the distance stand a reasonable chance of prevailing in these cases, he said: “After two years, and all that money, tell me if you think that's a win."  

At the next Expo West you'll see the word 'natural' being used far less

United Natural Products Alliance (UNPA) president Loren Israelsen acknowleged that the percentage of new product launches featuring natural claims had held up in recent years despite the threat of civil litigation (click here ), but predicted that things would change in 2014.

He added: "At the next Expo West you'll see the word 'natural' being used far less.

"I think we're seeing the end of the golden age of natural. We'll see more words like 'Simply' instead." 

The case is Debbie Banafsheha v H.J. Heinz Company, 2:14-cv-02023 filed in the Central District of California.

In an earnings call this morning to discuss the eight month period from Feb 8 to Dec 29, 2013, Heinz chief financial officer Paulo Basilio said sales were down 1.2% to $7.4bn, with sales growth in US foodservice (+4.2%) and the company’s ‘rest of world’ segment (+0.6%) offset by declines in US consumer products (-3.4%), Europe (-0.5%) and Asia Pacific (- 2.8%).

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