Judge: A reasonable consumer might be deceived by presence of SAPP in ‘all-natural’ baking mixes
In his February 5 order on a deceptive advertising case* filed in the Northern District of California by plaintiff Edward Musgrave against ICC/Marie Callender’s Gourmet Products Division, district judge Jon S Tigar dismissed Musgrave’s unjust enrichment and injunctive claims but allowed various California statutory and common law consumer protection, warranty, and contract claims to proceed.
While there is some debate over whether GMOs belong in ‘all-natural’ products, said the judge, the FDA's position on synthetic substances was clearer: “The FDA has articulated a policy establishing that a product is not natural if it contains color, artificial flavors or synthetic substances and plaintiff alleges that SAPP is a synthetic substance. This is not a case in which further guidance from the FDA is necessary in order for the court to decide this case.”
Meanwhile, the fact that SAPP is permitted in USDA certified organic products does not mean that it is ‘all-natural’ by definition, he said.
SAPP has also been the subject of FDA warning letters over 'natural' claims
SAPP - which has been the subject of multiple class action lawsuits over the past couple of years – was also referenced in a September 2014 FDA warning letter to Lawrence, MA-based Middle East Bakery, LLC, in which the FDA said:
“Your liveGfree Blueberry Pancakes are misbranded within the meaning of Section 403(a)(1) of the Act [21 U.S.C. § 343(a)(1)] because [they] bear the claim ‘All Natural’ but contain sodium acid pyrophosphate, which is a synthetic substance.”
While the FDA has not shown much enthusiasm for coming up with a legal definition of ‘natural’, it has used warning letters to clarify its thinking on the 'naturalness' of certain ingredients, which are often seized upon by plaintiff’s attorneys looking for targets in food labeling lawsuits, even though they are not legally binding.
Judge: Just because SAPP is allowed in organic foods doesn't make it all-natural
Meanwhile, in a June 2014 order on a case against Whole Foods over SAPP in the northern district of California (click HERE), US district judge Vince Chhabria said it was plausible that a reasonable consumer “could interpret the words ‘all natural’ to exclude synthetic compounds such as SAPP”.
In an October 2014 order on a similar case vs Hain Celestial over its Earth’s Best organic mini waffles, fellow judge William H. Orrick III agreed.
What is SAPP?
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’ baked products).
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).
*The case, originally filed in May 2014, is Edward Musgrave v ICC/Marie Calender's Gourmet Products Division, 3:14-cv-02006
Another class action lawsuit over SAPP was filed last month in Colorado: Frei v. Vans International Foods, Inc., No. 15-cv-00209
Click HERE to read more about the number of class action lawsuits filed in California since 2012.