Unsure What “Natural” Means? That’s Natural…

As anyone who has entered a grocery store in recent years has noticed, there has been a proliferation of foods and beverages claiming to be “natural.” This is not surprising, as according to market research, there is a large percentage of Americans who seek out and buy these types of products.

Unfortunately, the FDA has not provided a clear statutory definition of what “natural” means. However, despite this regulatory uncertainty, manufacturers, suppliers, marketers, and retailers of such “natural” foods and beverages can glean some guidance from some of the FDA’s regulatory actions.

For example, the FDA has taken some regulatory action against some companies’ use of the term “natural” on food products in the form of warning letters, and these warning letters can shed some light on what the FDA does not consider “natural.” Some such ingredients include  artificial rye flour in crackers, imitation crab meat with synthetic ingredients, and disodium dihydrogen pyrophosphate and potassium sorbate, (both of which are synthetic chemical preservatives).

Other ingredients targeted as “unnatural” include xanthan gum, hexane-processed soy ingredients, ascorbic acid, GMO corn, disodium phosphate, inulin, fibersol 2, evaporated cane juice, maltodextrin, as well as synthetic preservatives.

However, the FDA’s guidance has not always been unambiguous, as seen with the FDA’s treatment of high fructose corn syrup. The FDA has indicated that a food item is “natural” if it contains nothing artificial or synthetic that would not normally be expected to be in food, including all color additives, regardless of source. But, it is not always clear whether certain ingredients are artificial, synthetic, or not normally expected to be in a food. In April 2008, the FDA stated that it would object to use of the term “natural” on a product containing high fructose corn syrup. However,  a few months later, the FDA  indicated that whether high fructose could be considered “natural” would depend on the manner in which the corn syrup is manufactured.

Predictably, the lack of a clear, formal definition of “natural” has resulted in litigation, and a number of class action lawsuits attacking companies’ use of these claims have impacted manufacturers, suppliers, marketers, and retailers. Some of these suits have resulted in large monetary settlements, ranging from several hundred thousand dollars, to as much as nine million dollars. Results such as these, coupled with the continued  lack of clear guidance on what constitutes “natural,” suggest that lawsuits involving the use of this claim may continue to be attractive to plaintiffs’ lawyers for the foreseeable future. And, of course, this threat of litigation will continue to be a concern for companies in the food and beverage industry. We will continue to monitor this trend and report back with any noteworthy developments.

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