Who will ultimately decide whether products made with genetically engineered ingredients should be promoted as ‘natural’? The courts? Or the FDA?
Pressure has been mounting on the FDA to tackle this issue in recent weeks after judges handling two high profile class action lawsuits vs Gruma Corp and General Mills over natural claims and GMOs put them on ice to give the agency time to clarify things once and for all.
However, an order filed on Aug 23 by a federal judge in California in a similar case vs JM Smucker over Crisco oils has thrown the whole issue up in the air again, say lawyers contacted by FoodNavigator-USA.
Parties have repeatedly asked the FDA to rule on 'natural' labeling, and the FDA has declined to do so
U.S. District Judge Samuel Conti denied Smucker’s motion to dismiss a lawsuit filed by plaintiff Diane Parker alleging the firm mislabels Crisco Oils as ‘all natural’ because they are made with GM crops, and are "so heavily processed that they bear no chemical resemblance to the ingredients from which they were derived".
Smucker said Parker had failed to provide firm evidence that the oils contained GMOs, and said Parker’s goal was to require GM foods to be labeled differently from non-GM foods in a way that is pre-empted by federal law.
But Conti disagreed, claiming it was "more than a sheer possibility" that the oils were in fact from GM crops, and that the issue was not whether GM foods should be labeled as bio-engineered, but whether Crisco oils should be promoted as ‘all-natural’.
Judge: This case is not about whether GM foods should be labeled
He added: “This is not a case in which a plaintiff sued a food producer for not disclosing its use of bioengineered ingredients. Rather, Plaintiff sued Defendant for allegedly making a false or misleading statement on its products [that they are ‘all-natural’].”
Meanwhile, there is little evidence that the FDA is going to make a decision on whether GM foods are ‘natural’ anytime soon, he added:
"Various parties have repeatedly asked the FDA to rule on 'natural' labeling, and the FDA has declined to do so because of its limited resources and preference to focus on other priorities.”
CSPI: The only time it's proper in this context to defer to FDA is when there is a chance in hell of FDA acting
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, welcomed Conti’s ruling.
“In Gruma and the other cases where courts have deferred to the primary jurisdiction of FDA, those courts are (with all respect) completely incorrect”, he told FoodNavigator-USA.
“The only time it's proper in this context to defer to FDA is when there is a chance in hell of FDA acting. Here, there clearly is no chance at all, as FDA has repeatedly confirmed.”
Meanwhile, Conti “clearly saw through Defendant's mischaracterizations of Plaintiff's claims”, he said. “We frequently see this. Defense counsel fictionalizes the nature of the lawsuit and then seeks to have their pretend lawsuit dismissed.”
Rebecca Cross: The Court essentially disregarded 20+ years of FDA policy concerning labeling of GM ingredients
But what do lawyers defending food industry clients in such cases think about Conti’s order?
Rebecca Cross, an attorney at San Francisco-based law firm BraunHagey & Borden LLP, told us that this is a “surprising decision and is at odds with recent decisions from federal courts around the country”.
She added: “The Court essentially disregarded 20+ years of FDA policy concerning labeling of GM ingredients, as well as several recent decisions referring to the FDA the specific question of whether GM foods may be labeled ‘natural’.
“The Court also mischaracterizes plaintiff’s claim as not demanding that Smucker label its product differently. But that is exactly what plaintiff is doing: proposing new food labeling laws which restrict claims that GM products are able to make. And this contradicts the long-standing FDA policy that GM foods should be labeled the same way as other foods.”
Kristen Polovoy: FDA would be walking into a minefield if it attempted to define natural on back of these cases
However, Kristen Polovoy, counsel in the litigation department of Montgomery, McCracken, Walker & Rhoads LLP, said Conti’s refusal to invoke primary jurisdiction to stay the lawsuit was “not altogether surprising”.
In practical terms, she said, the FDA will walk into a minefield if it agrees to requests from courts to clarify the natural/GMO issue.
“Does the presence of preservatives disqualify a product as ‘natural’ even if those preservatives are derived from ingredients found in ‘nature’like corn and plants? Precisely which food feature is determinative of its ‘natural’ status – the method of manufacture, the specific amount of GMO content, or something else entirely?
“How can agencies craft a ‘natural’ definition that does not transgress food manufacturers’ commercial speech rights?”
FDA decision on natural/GMOs would not necessarily put an end to consumer fraud class action litigation
Meanwhile, even if the FDA were to accept the invitation to define ‘natural’ specifically for GM foods, “this would not necessarily be a panacea to the proliferation of consumer fraud class action litigation because the definition would not address all scenarios”, she argued.
For example, the USDA regulates most meat, poultry and egg products, she observed. “So, in theory, an FDA definition excluding GMO products as ‘natural’ would not necessarily prohibit the sale of ‘All Natural’ chicken fed with food containing GMOs.
“It would require buyers looking at ‘natural’ labels on their purchases to know whether a particular product was (e.g., a food additive or dietary supplement) or was not (e.g., eggs) covered by the proposed FDA limitation on use of ‘natural’ labels.
“So ‘natural’ labels on only FDA-regulated food products could engender more consumer confusion.”
Whether the FDA does ultimately decide to define natural “may depend upon whether the food industry itself can arrive at a consensus for how ‘natural’ should be defined in the GMO context”, she said.
The case is Parker v JM Smucker Co, 3:2013cv00690.