REBECCA CROSS, BRAUNHAGEY & BORDEN LLP: New lawsuits will focus on ‘overly processed’ or ‘grown with the use of pesticides’
Next, we quizzed Rebecca Cross, a San Francisco-based attorney at law firm BraunHagey & Borden LLP.
FNU: What kind of food & beverage companies are most likely to be targeted in all-natural lawsuits?
Cross: These days, any packaged food company using the term ‘natural’ is a target for a lawsuit – big or small – practically irrespective of the ingredients in the products.
FNU: Are more food companies qualifying natural claims to avoid the threat of litigation?
Cross: Terms like ‘all natural’ and ‘100% natural’ have become increasingly vague and non-useful for consumers; consumers do not seem to understand what ‘natural’ means. Therefore, brands have been focusing, instead, on more discrete, easily understandable product qualities, such as ‘naturally sweetened’ or ‘no artificial preservatives’.
FNU: Is the number of lawsuits over natural claims rising, falling or leveling off?
Cross: Despite favorable defense decisions, ‘natural’ lawsuits continue to be filed on a regular basis – in fact, they have expanded. The first wave was against companies using high fructose corn syrup, then other allegedly synthetic ingredients, then GMO ingredients. Now plaintiffs’ attorneys are alleging merely that certain ingredients are ‘overly processed’ or ‘grown with the use of pesticides’.
FNU: What can we learn from cases that have made it to the class certification stage?
Cross: We’ve learned that courts will not certify these cases as class actions; virtually all of the courts that have examined the issue have denied them on multiple grounds.
FNU: Who is driving all the litigation? Angry consumers or opportunistic lawyers?
Cross: I am unaware of any ‘natural’ litigation that was not driven by plaintiffs’ attorneys, rather than actual plaintiffs.
FNU: Should the FDA define ‘natural’ in relation to GMOs?
Cross: The FDA has already said that whether a product contains genetically engineered ingredients is immaterial for the purpose of labeling claims.
