|September 30, 2011|
Previously published on September 28, 2011
There is yet another lawsuit to add to the growing list of class actions against companies marketing foods bearing “natural” claims. On September 21, 2011, a class action complaint was filed in California against Bear Naked, Inc. (“Bear Naked” or “the Company”), alleging that several of the Company’s products labeled as “100% Pure & Natural” contained synthetic ingredients. Complaint at 1, Thurston v. Bear Naked, Inc., No. 11-cv-04678-LB (N.D. Cal. Sept. 21, 2011). The Complaint seeks damages and injunctive and declaratory relief for alleged common law fraud and unjust enrichment, as well as for violations of several California laws regarding unfair, unlawful, deceptive, misleading, and fraudulent practices. Id. at 12-19.
According to the Complaint, several Bear Naked products contain ingredients, such as lecithin, which are “recognized to be . . . synthetic additive[s] by federal regulation.” Id. at 8. The federal regulation referred to is a United States Department of Agriculture (“USDA”) National Organic Program (“NOP”) regulation that lists those nonagricultural substances - both nonsynthetic and synthetic - that are “allowed as ingredients in or on processed products labeled as ‘organic’ or ‘made with organic’” ingredients. 7 C.F.R. § 205.605. The Complaint asserts, among other things, that the Bear Naked products’ labels are false and misleading because the claim “100% Pure & Natural” suggests to “a reasonably prudent consumer” that the product does not contain synthetic ingredients. Complaint at 1.
Determining whether an ingredient is “natural” is generally a very complex question. The Food and Drug Administration’s (“FDA’s”) informal definition of “natural” is “that nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food.” 58 Fed. Reg. 2302, 2407 (Jan. 6, 1993). While this definition might seem straightforward, in practice, it has proven to be open to interpretation and influenced by other factors. For example, FDA has reportedly stated that high fructose corn syrup may be “natural” or not, depending on how the syrup is manufactured.
In light of this lawsuit, and absent a formal FDA definition of “natural,” it would be prudent for food companies considering a “natural” claim to determine what, if anything, the USDA has said about the ingredients.