In a “tentative ruling” on a case filed by Elizabeth Cox vs Gruma Corporation over ‘all-natural’ claims on Mission tortilla chips, judge Yvonne Gonzalez Rogers agreed with the plaintiff that there is a “gaping hole in the current regulatory landscape for ‘natural’ claims and GMOs”.
Judge recommends putting lawsuit on ice to give FDA time to decide if GMOs belong in ‘all-natural’ products
However,she disagreed with Cox’s claims that this matter would be best decided by a jury in California, adding that “deference to the FDA’s regulatory authority is the appropriate course”.
Therefore, she added, “the court is inclined to order that this action be stayed for six months and referred to the FDA for determination of whether products containing GMO or bioengineered ingredients may properly be labeled ‘natural’ or ‘all natural’.”
Plaintiff: The FDA has repeatedly declined to define or clarify the term ‘natural’
The move came as a surprise to some commentators, given that several judges handling similar cases in California have recently argued that primary jurisdiction is not applicable and that the FDA is unlikely to come up with a legal definition of ‘natural’ anytime soon.
Meanwhile, Cox’s lawyers argued that the “FDA has repeatedly declined to define or clarify the term ‘natural’ when asked to do so”.
Cox’s lawyers - at legal firm Milstein & Adelman, LLP, added: “A stay of this case for six months is not necessary.
“The Court should enter an Order denying the Motion to Dismiss because the FDA has repeatedly declined to define or clarify the term ‘natural’ when asked to do so, and courts across the country have declined to apply the primary jurisdiction doctrine as a direct result of the FDA’s inaction on this very issue.”
During a hearing on June 11, the court did not issue a ruling, but instead asked for additional briefings from both parties.
CSPI: The FDA has repeatedly affirmed that it's not going to deal with this issue any time soon
Stephen Gardner, director of litigation at the Center for Science in the Public Interest (CSPI), which has sued scores of food and beverage giants over allegedly false and misleading claims, told FoodNavigator-USA that waiting for six months would not help matters.
“I'm familiar with this tentative decision, and don't agree with it”, he said.
The CSPI has “dealt with this exact issue before, most recently in our case against General Mills [over natural claims on Nature Valley bars]”, he added
And in the Gen Mills case, he pointed out, the judge said it would be “futile ” to refer the issue to the FDA given that there is no legal definition of natural, and the FDA is unlikely to come up with one anytime soon.
He added:“The FDA has repeatedly affirmed that it's not going to deal with this issue any time soon.”
Another legal source told FoodNavigator-USA that similar attempts a couple of years ago to get the FDA to come to a firm decision on whether high fructose corn syrup (HFCS) could be labeled as ‘natural’ did not get anywhere, and as such, moves to stay these cases just meant that they dragged on even longer.
Hopefully the FDA will weigh in
A third source told us that there are class actions currently pending against about a dozen companies for labeling their products as 'natural' when they allegedly contain GM ingredients, but that this is the first to accept primary jurisdiction as grounds to stay.
The source said: "Hopefully the FDA will weigh in. If not, these GMO/natural suits could continue to be filed against almost any packaged good company.
"Another important ground for dismissal of these types of cases, which was not really cited by Gruma, is that no California consumer could reasonably believe that 'natural' means GM-free in light of California’s Prop 37, which would have prohibited foods with GM ingredients from being labeled 'natural' and was rejected by voters."
The FDA’s position on natural claims and GMO labeling
With respect to the use of the term ‘natural’ on food labels, the FDA published non-binding guidance in 1993 saying natural means that “nothing artificial or synthetic (including all color 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”.
But this did not clarify the status of foods containing HFCS, GMOs and a raft of other ingredients that many stakeholders believe do not belong in a product labeled as ‘all-natural’.
As for GMOs, in a guidance document you can read here , the agency says it “not aware of any data or other information that would form a basis for concluding that the fact that a food or its ingredients was produced using bioengineering is a material fact that must be disclosed [on food labels]. FDA is therefore reaffirming its decision to not require special labeling of all bioengineered foods.”
The complaint (Cox v. Gruma Corporation, No. 12-6502) was filed on December 21, 2012, by Elizabeth Cox, who argued that Gruma had made “false and misleading statements that are likely to deceive reasonable consumers” by describing Mission Tortilla chips as ‘all natural’, “when in fact they are not because they contain GMOs in the form of corn and/or corn derivatives”.
To find out more about the legal risks associated with making natural claims on pack, tune into Natural & Clean Label Trends 2013 , our free-to-attend online event.
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