Safeway has been hit with a proposed class action lawsuit alleging it misled consumers by describing its Open Nature Multi-Grain and Homestyle waffles as ‘100% natural’ because they contained the chemical additive sodium acid pyrophosphate (SAPP).
In a complaint filed in a federal court in California on behalf of state- and nation-wide classes, plaintiff Ryan Richards alleges that he bought the waffles because they were promoted as 100% natural, and paid a premium, and felt duped when he learned they contained SAPP.
Although Richards’ complaint describes SAPP as a “synthetic chemical preservative’, in waffles and baked goods, SAPP typically serves as a leavening agent that reacts with baking soda to control the release of carbon dioxide (which is what raises or ‘leavens’ the foods).
Plaintiff: ‘According to FDA policy, ‘natural’ means the product does not contain synthetic or artificial ingredients’
The FDA, says Richards, has “established a policy and defined the outer boundaries of the use of the term ‘natural.’ According to this agency, at the very least, a product is not ‘natural’ if it contains color, artificial flavors, or synthetic substances”.
He also refers to a 2008 consumer food labeling update (click here ) from the FDA, which says that “According to FDA policy, ‘natural’ means the product does not contain synthetic or artificial ingredients”.
Meanwhile, Safeway’s website says that all the ingredients used in the ‘Open Nature’ range “come from nature", notes Richards.
The multiple uses of SAPP
According to the International Food Additives Council, SAPP is typically prepared by the partial neutralization of phosphoric acid (which is derived from crushed and purified phosphate rock) with sodium hydroxide or sodium carbonate to form monosodium phosphate. This is then dehydrated under controlled conditions to make SAPP.
SAPP has multiple applications in food, from a leavening agent in baked goods to a means of retaining moisture in processed meats. Classified in Europe as E450 (i), it is generally recognized as safe (GRAS) in the US.
While the Center for Science in the Public Interest (CSPI) notes that “excessive consumption of phosphates could lead to dietary imbalances that might contribute to osteoporosis”, it also notes that “only a small fraction of the phosphate in the American diet comes from additives” and gives it a ‘safe’ rating on its website (click here ).
SAPP does not feature on most retailers’ ‘banned’ lists of ingredients
Safeway, which did not respond to our requests for a comment on the lawsuit, has a list of around 130 ‘artificial’ ingredients that are not permitted in its Open Nature range (click here ).
However, SAPP is not the list; nor does it feature on the list of ingredients banned from Kroger's Simple Truth range (click here ), or on Whole Foods’ influential list of ‘unacceptable ingredients’ (click here ).
Attorney: The problem with the 100% natural claim is that it is pretty unequivocal
So does Richards have a case?
Legal experts contacted by FoodNavigator-USA said the plaintiff's lawyers in this case might have an easier time arguing that a 'reasonable consumer' would not consider SAPP to be natural vs some of the other disputed 'natural' ingredients, which are often plant-derived, but have undergone some processing (HFCS, stevia).
One food law attorney told us: ”Cases in which a company uses ‘natural’ to describe a product that has a chemical preservative or other form of chemical or synthetic ingredient are much easier for plaintiffs and gives them much more leverage for settlement.
“The problem with the 100% natural claim is that it is pretty unequivocal. The company would probably have a better argument if it had just said ‘natural’ instead of ‘100% natural’… I tell most clients to focus more on what the product doesn’t have – ‘no artificial colors, flavors…’ than making blanket ‘all natural’ claims.”
'It will still boil down to whether the specific ingredient at issue is 'natural' to a reasonable person'
However, Kristen Polovoy, counsel in the litigation department of Montgomery, McCracken, Walker & Rhoads LLP, added that "there is still no bright line rule that makes any given consumer fraud food labeling private lawsuit more or less likely than others to succeed or to fail based simply upon which type of ingredient is being challenged.
"It will still boil down to whether the specific ingredient at issue is 'natural' to a reasonable person, based on its food sourcing origins and processing methods."
She also noted that the FDA 'policy' on natural claims cited by Richards is not legally binding.
"Despite plaintiff Richards’ suggestion that the FDA has defined the outer boundaries of the use of the term ‘natural’, the FDA has never issued a formal definition of 'natural'."
'Inconsistent complaints like this show how difficult it will be for the industry if plaintiffs’ attorneys are able to create their own food labeling laws through piecemeal litigation'
Rebecca Cross, an attorney at San Francisco-based law firm BraunHagey & Borden LLP, said: "What is interesting to me is that, in this complaint, plaintiffs urge the court to apply the FDA definition of 'natural', stating that a 'reasonable' consumer’s definition of 'natural' would comport with this regulatory definition.
"Yet, in other class actions, plaintiffs allege that consumers think 'natural' means something different than the regulatory definition. Inconsistent complaints like this show how difficult it will be for the industry if plaintiffs’ attorneys are able to create their own food labeling laws through piecemeal litigation."
The case is Ryan Richards et al. v. Safeway Inc., case no. 3:13-cv-04317, in the U.S. District Court for the Northern District of California.
Richards is bringing the action on behalf of himself; California residents who bought the waffles from September 18, 2009 onwards; and a nationwide class of consumers that purchased the waffles on or after this date.
Click here to read the complaint in full.
Click here to read about the ingredients retailers try to avoid in their 'natural' ranges.
Click here to read the latest on 'natural' lawsuits.