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Are all-natural claims worth the risk?

By Elaine Watson, 26-Mar-2012

Related topics: Sweeteners (intense, bulk, polyols), Regulation, The GM debate, Food labeling and marketing

The threat of civil litigation is now so great that food manufacturers using any ingredients not found in ‘Grandma’s kitchen cupboard’ should think twice about making ‘all-natural’ claims on pack, according to one firm specializing in food label compliance.

Karen Duester – president of the Food Consulting Company – was speaking to FoodNavigator-USA in the wake of a string of class action complaints over the use of the word ‘natural’ on food labels.

In the latest case – a complaint filed against Jamba Juice in California – the plaintiff’s attorney argued that “a reasonable consumer would not consider food products containing unnaturally processed, synthetic substances or substances created via chemical processing to be ‘all-natural’.”

Customer requirements, FDA guidance, class actions

Duester said: “The 1993 FDA guidance on ‘natural’ has not changed, but consumer groups such as the Center for Science in the Public Interest and the recent wave of class action lawsuits have made everybody much more cautious about how they interpret it.

“A number of ingredients are now being scrutinized that were not considered ‘unnatural’ before.”

She added: “We now advise manufacturers to be extremely cautious on natural claims. First, you have to look at what your customers will accept, then at the FDA guidance, and then at the risk of a lawsuit.”

‘Truthful and not misleading’

While the FDA’s 1993 guidance is clear about avoiding artificial ingredients and added color, its advice that ‘natural’ should be “used in a manner that is truthful and not misleading” was being seized upon by plaintiffs’ attorneys in all-natural cases, she said.

“And that’s what the lawsuits are all focused on. Would a ‘reasonable consumer’ consider that the way this ingredient is processed is ‘natural’? Is it in Grandma’s kitchen cupboard? Does it have a chemical-sounding name?”

She added: “I don’t see the FDA acting to define natural anytime soon, so deciding what you will risk is a business decision each company has to make.  I remember hearing an FDA official say that if we define natural we will have to define un-natural as well, it’s a complete minefield.”

NPA Natural Seal

The Natural Products Association (NPA), which is expanding its Natural Seal certification scheme, which was first developed for home and personal care products, to include food products, says it will have an update on its progress in the summer.

The plan is to roll out standards category by category, beginning with meat & poultry, and snacks & cereals.

Ingredients extracted with organic solvents probably would probably not qualify, along with modified starch, high fructose corn syrup and partially hydrogenated vegetable oils, NPA vice president of scientific and regulatory affairs Cara Welch told NutraIngredients-USA.

However, whether genetically engineered ingredients should be excluded from products bearing the seal is still being debated. 

Speaking at the Nutracon conference in Anaheim this month, Justin Prochnow, shareholder at law firm Greenberg Traurig LLP, said one of the biggest challenges facing the industry was the threat of civil litigation over label claims: “You have to think at the moment, is it really worth making an all-natural claim?”

Click here to read more about the Jamba Juice complaint.