Thursday, June 23, 2016

Is Your Food Label “Naturally” Misleading?

What do the farmers’ market movement, non-GMO foods, and the Paleo diet have in common? All are aspects of a sweeping trend favoring healthy food products.

While health fads and trends have historically been fleeting (think “low-fat” everything in the 1990s), recent survey evidence suggests that rather than opting for fad diets, more and more consumers are committing to making healthier food choices in the long term. currently offers over 1,000 titles devoted to “clean eating.” Companies such as Blue ApronPlated, and Hello Fresh are emerging to offer consumers healthy ingredients and cooking instructions each week. New food services such as Origin Meals and Power Supply offer meal preparation and delivery services to meet consumer demands for sustainable, fresh, convenient, quality meals. And global sales of healthy food products are estimated to reach $1 trillion by 2017.

Important to the healthy food movement is the definition of “natural” in the food labeling space. According to a recent study by the Consumer Reports National Research Center, nearly 62 percent of shoppers tend to buy foods labeled “natural,” and nearly 87 percent of shoppers, including all demographics–from Generation Z to Baby Boomers–say they would pay more if the term “natural” meets their expectations.

But what are these expectations? To some, “natural” excludes genetically modified organisms (GMOs). To others it means minimal processing, or that the food product comprises only substances that are not human made. 

Despite repeated requests from food industry groups, food manufacturers, and consumer groups, the term “natural” has for decades evaded an official definition. The Federal Trade Commission first considered defining the term in the 1970s, but it abandoned the effort. The United States Department of Agriculture has issued regulations about what constitutes “natural” for meat, poultry, and processed eggs, foods within its regulatory purview. But the Food and Drug Administration has yet to issue any authoritative guidance, despite its charge to protect public health by, among other things, ensuring the safety and proper labeling of all food sold in the United States.

The uncertainty over the meaning of “natural” has resulted in many class action lawsuits alleging false or misleading advertising of the use of the term on product labels. Although none of these lawsuits have seen a trial, this kind of litigation can be expensive and can have significant implications on branding. Brands that have ultimately changed product claims as a result of such “natural” challenges include Pepsi Co., Nature Valley, 7Up, Capri Sun, Crystal Light, Edy's, Dreyer's, Izze, Pop Chips, Kashi, and Trader Joe's.

Finally, in response to four citizen petitions and requests from several federal judges presiding over pending “natural” cases, the FDA opened a rulemaking docket. The FDA received over 7,600 comments regarding the use of the term “natural” in food labeling. Among other things, the FDA asked:

Whether it is appropriate to define the term “natural”;
If so, how the agency should define “natural”; and
How the agency should determine appropriate use of the term on food labels. 

Although seeking public comment is only the first step in what could be a long rulemaking process, legal pressures and the growing “clean” eating movement seem to have led to at least one trend: Food manufactures are moving away from the use of “natural”—a powerful but now increasingly suspect marketing tool – toward labeling focused on what is not in their products (no artificial ingredients, sweeteners, gluten, etc.), resulting in a shift to factual, independently verifiable claims, which can either be certified through independent third-parties or through testing. 

For more on this issue, keep an eye out for Julia Dayton Klein’s upcoming article, “An Eater’s Guide to the ‘Natural’ Labeling Food Fight” in the American Bar Association’s Landslide magazine.

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