Kashi – which agreed to settle a similar case in California last year for $5m – was accused of misleadingly and unlawfully labeling cereals, bars, snacks, and pizzas as ‘All-Natural’ and/or containing ‘Nothing Artificial’ when in fact they contain “bio-engineered, artificial, and synthetic ingredients”.
The plaintiffs took particular issue with: “GMO soy, GMO soy-derivatives, GMO corn, GMO corn-derivatives, pyridoxine hydrochloride [vitamin B6], alpha-tocopherol acetate [vitamin E], hexane-processed soy ingredients, and calcium pantothenate [vitamin B5],” which they argued, a reasonable consumer would not expect to find in products labeled ‘all-natural’.
In an order on the case last fall, US district judge Joan A Lenard said the plaintiffs’ suit “sufficiently alleges that a reasonable consumer would expect a product labeled ‘all natural’ to be free of GMOs.”
She also rejected Kashi's argument that the ‘all-natural’ claims at issue were pre-empted by the federal Food, Drug and Cosmetic Act or that the doctrine of primary jurisdiction should apply (eg. the FDA is best-placed to decide what is ‘all-natural’).
In fact, the courts are more than capable of determining whether a reasonable consumer has been misled, she said. Shortly afterwards, the parties entered into settlement talks.
Kashi will reimburse shoppers, change its labels and provide compliance info on non-GMO claims
While Kashi has not admitted any liability, it has opted to settle the case to avoid the cost of protracted litigation, and agreed to allocate between $2m and $3.99m to reimburse shoppers.
Under the proposed settlement – which is subject to a final approval hearing on January 27 – Kashi will also remove ‘all-natural’ and ‘nothing artificial’ claims from products containing the contested ingredients “unless such ingredient is approved or determined as acceptable by a federal agency or controlling regulatory body to be designated as ‘natural’”.
Finally, it has agreed to provide “compliance information” on products in its range that feature the Non-GMO Project Verified label twice a year for the next three years.
None of the food crops grown commercially today would have occurred ‘naturally’
While anti-GMO activists argue that GMOs are the text-book example of something that isn’t ‘natural’, other observers argue there is nothing ‘natural’ about many conventional plant breeding techniques either - and that none of the food crops grown commercially today would have occurred ‘naturally’.
Not surprisingly, therefore, the issue of whether GMOs belong in ‘all-natural’ foods and beverages has featured heavily in the debate over GMO labeling, with the GMO labeling law in Vermont (effective July 1, 2016), for example, stipulating that products containing GMOs cannot be labeled as ‘natural’ [see p5 of the law HERE), while HR1599 - the federal Safe and Accurate Food Labeling Act 2015 - would allow firms to make 'natural' claims on foods made with ingredients from genetically engineered (GE) crops.
Status of ‘all-natural’ lawsuits
While scores of ‘all-natural’ lawsuits are still moving through the courts, none have yet gone to trial.
Many of these cases are withdrawn or ultimately thrown out, but mounting a defense can be costly and time consuming, and several high-profile defendants including Kellogg, Trader Joe’s, Pepsi and Pop Chips have chosen to settle to avoid the expense of protracted litigation.
As to the settlements, while some defendants have agreed to cough up millions, others have only had to amend labels (injunctive relief) as the plaintiffs were unable to present a viable model for calculating damages (eg. Jamba Juice ).
*Katrina Garcia, Laura Eggnatz & Julie Martin et al v Kashi Company, 1:12-cv-21678-JAL