October 6, 2011
Previously published on October 4, 2011
Food manufacturers and marketers should be aware of what appears to be a growing trend of class action complaints to hit the industry. In general, the complaints allege that marketing claims that food products are “all natural,” or similar claims, are false and misleading because the products contain one or more added and artificial ingredients. The complaints contain several common elements. First, the complaints identify marketing claims made by the defendant that one or more products is “all natural,” “100% natural,” contains “nothing artificial,” or similar claims. Second, even though the FDA has not adopted a definition of “natural,” the complaints identify definitions of “natural,” “artificial,” “synthetic” or related terms from various federal statutes and/or regulations, including the USDA’s definition of “organic,” or possibly from other promotional material of the defendant itself. Third, the complaints identify ingredients of the products that allegedly do not meet the asserted definition of “natural” or that do meet the definition of “artificial” or “synthetic.” Finally, the complaints rely on a variety of legal theories, typically including at least unfair competition, false advertising, unjust enrichment, breach of express and implied warranty, and fraud and constructive fraud. Even before they have been resolved, these cases already provide important reminders and may one day provide answers to important questions. One reminder is that a balance must be struck between asserting claims in advertising or elsewhere that will appeal to health-, environmentally-, or socially-conscious consumers (or any other segment) and claims that can be substantiated by adequate evidence. Another important reminder is that, although the FDA has not defined “natural,” such claims are still subject to scrutiny in private litigation. Indeed, the collective “consumer plaintiffs’ bar” almost undoubtedly has more resources and economic incentive to pursue such claims than does the FDA or one of the other federal agencies that regulates food products. The important questions that these cases may one day answer or help to answer include what is the definition of natural. These cases, and the increasing prevalence of “natural” claims on food products, may force the FDA to adopt a definition and, in any event, may also lead to a judicial definition. The USDA’s definition of “organic” allows for some minimal processing. Does the definition of “natural” allow for some minimal processing and, if so, how much? Does it allow for any non-natural ingredients and, if so, how many and how much of each? Is a product “all natural” if it includes ingredients found in nature but the versions of the ingredients found in the particular product were derived from a non-natural source or process? What if the non-natural source of the product is disclosed on the packaging? How prominent must such a disclosure be? Until there are more definitive answers to these questions and others, companies making claims that their food products are “natural,” or similar claims, should be sure to have ample substantiation for the claims and may even want to consider disclosing the basis for the claims on their packaging or websites to potentially head-off expensive and time-consuming litigation.
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