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More ‘all-natural’ blues for Kashi as Florida judge allows GMO/all-natural class action to proceed

By Elaine Watson+

09-Sep-2014
Last updated on 09-Sep-2014 at 16:53 GMT2014-09-09T16:53:42Z

Kashi recently agreed to pay $5m to resolve a class action lawsuit accusing it of falsely advertising scores of product as ‘all natural’ or with ‘nothing artificial’, although it has not admitted any liability
Kashi recently agreed to pay $5m to resolve a class action lawsuit accusing it of falsely advertising scores of product as ‘all natural’ or with ‘nothing artificial’, although it has not admitted any liability

Just months after Kashi agreed to settle a California class action lawsuit accusing it of deceptively advertising its wares as ‘all-natural’, a judge has allowed most claims in a similar class action brought in Florida to proceed.

The Florida lawsuit* - which consolidates a couple of related cases filed in 2012 - accuses Kashi and parent company Kellogg of misleadingly and unlawfully labeling cereals, bars, snacks, pizzas and other products as ‘All-Natural’ and/or containing ‘Nothing Artificial’ when in fact they contain “bio-engineered, artificial, and synthetic ingredients”.

The plaintiffs take particular issue with: “GMO soy, GMO soy-derivatives, GMO corn, GMO corn-derivatives, pyridoxine hydrochloride [vitamin B6], alpha-tocopherol acetate [vitamin E], hexane-processed soy ingredients, and calcium pantothenate [vitamin B5],” which they argue, a reasonable consumer would not expect to find in products labeled ‘all-natural’.

Judge: Lawsuit ‘sufficiently alleges that a reasonable consumer would expect a product labeled ‘all natural’ to be free of GMOs ‘

While US district judge Joan A Lenard agreed with Kashi that Kellogg should not be named as a co-defendant in the case, she said most claims could proceed.

In her September 5 order granting in part and denying in part Kashi's bid to dismiss the case, she said that the plaintiffs’ suit “sufficiently alleges that a reasonable consumer would expect a product labeled ‘all natural’ to be free of GMOs.”

She also rejected Kashi's argument that the ‘all-natural’ claims at issue were pre-empted by the federal Food, Drug and Cosmetic Act or that the doctrine of primary jurisdiction should apply (eg. the FDA is best-placed to decide what is ‘all-natural’).  

In fact, the courts are more than capable of determining whether a reasonable consumer has been misled, she said.

Separately, while USDA might have determined that some hexane-processed soy ingredients could be labeled ‘natural’, USDA’s authority only extended to meat and poultry products and not the Kashi products cited in this case, she added.

Australian high school chemistry teacher James Kennedy hopes to inject some sanity into the 'all-natural' debate...

Kris Charles, Kellogg Company spokesperson, told FoodNavigator-USA: “We do not comment on pending litigation.”

FDA respectfully declines call to determine if GMOs belong in ‘natural’ foods

While the Food & Drug Administration (FDA) has consistently stated that foods made from GM crops do not require special labeling as they are not materially different from their conventional counterparts, it has not provided legal clarity on whether GMOs belong in products labeled as ‘natural’.

And while some judges have asked it to pin this issue down to stop scores of lawsuits clogging up the court system, the agency has not, to date, shown any enthusiasm for doing so.

Indeed, in a letter to three federal judges penned in January 2014, the FDA chose to “respectfully decline” their requests to come to an administrative determination of whether GMOs belong in ‘all-natural’ foods.

Were the FDA inclined to change their current policy on natural (ie. “nothing artificial or synthetic - including all color additives regardless of source - has been included in or added to a food that would not normally be expected to be in the food”), said the agency, “We would likely embark on a public process such as issuing a regulation or formal guidance…We would not do so in the context of litigation between private parties.”

Picture credit: Daniel Lobo, Flickr

None of the food crops grown commercially today would have occurred ‘naturally’

The issue of whether GMOs belong in ‘all-natural’ products has featured heavily in the debate over GMO labeling, with some state-led GMO labeling initiatives such as California’s Prop 37 stipulating that products containing GMOs should not be dubbed ‘natural’.

While anti-GMO activists argue that GMOs are the text-book example of something that isn’t ‘natural’, other observers argue there is nothing ‘natural’ about many conventional plant breeding techniques either - and that none of the food crops grown commercially today would have occurred ‘naturally’.

Click HERE  to read about Kashi’s decision to settle a similar lawsuit in California.   

*The case is Katrina Garcia, Laura Eggnatz & Julie Martin et al v Kashi Company & The Kellogg Company, 12-cv-21678.

Are all-natural claims losing their luster?

Click HERE to register for FoodNavigator-USA’s live online forum on Natural & Clean label Trends on September 30. (It's FREE!)

We'll explore the following discussion points:

  1. Beyond ‘all-natural’: What are consumers looking for?
  2. The legal lowdown: Are natural claims worth the hassle?
  3. Who’s driving the natural and clean-label agenda?
  4. Natural vs organic: What’s the difference, and do shoppers care?

Who's on the panel?

  • NICOLE DAWES - CEO, Late July
  • PHIL ANSON - CEO, EVOL Foods (Boulder Brands)
  • KRISTEN POLOVOY - Attorney, Montgomery McCracken
  • STEPHEN GARDNER - Director of Litigation, Center for Science in the Public Interest
  • DR DAN FABRICANT - CEO, Executive Director, Natural Products Association  

 

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