The American consumer’s demand for healthier eating options continues to grow and the food industry is responding in kind. Since the diet craze first swept the United States in the 1970s, the labeling term ‘natural’ has been ubiquitous on everything from canned vegetables to cereal. But, despite the term’s omnipresence for the last 40 years, a majority of consumers are confused about what “natural” actually means. In fact, as of 2015, about 60 percent of surveyed consumers thought packaged foods labeled “natural” were made with no toxic pesticides, no artificial colors or ingredients, and no GMOs. Between 80 and 85 percent think that a food labeled as “natural” should indicate on its packaging whether it includes pesticides, artificial ingredients, and/or GMOs.

In reality, a small minority of foods are grown and processed in the manner aligned with consumer expectations. This issue is exacerbated by the Food and Drug Administration’s (“FDA”) lack of firm boundaries on the use of the term, leaving the issue muddied for consumers, food growers, processors, and manufacturers. In an attempt to move forward on the issue, in November 2015, the FDA “announc[ed] the establishment of a docket to receive information and comments on the use of the term ‘natural’ in the labeling of human food products, including foods that are genetically engineered or contain ingredients produced through the use of genetic engineering.” The notice and comment period ended in May 2016. Thereafter, the FDA went silent, leaving stakeholders in the dark on the agency’s position.

Then, on December 19, 2018, in response to a letter from Congress, the FDA stated that it “is actively working on this issue, and in 2019, FDA plans to publicly communicate next steps regarding Agency policies related to ‘natural.’” While this announcement does little to provide a timeline for the FDA’s rulemaking, the Agency may at least provide some guidance on its process later this year.

In the meantime, where the FDA declines to rule, consumer confusion and lawsuits often follow, including litigation over the term ‘natural.’ These cases are not new, but the way these claims are presented and how courts handle them is. With a focus on individual ingredients, both consumers and judges have become more sophisticated as the canon of ‘natural’ food lawsuits grows. In fact, ‘natural’ labeling claims experienced a resurgence in the past year, representing some of 2018’s biggest victories for plaintiffs.

This new generation of “natural” claims target the use of particular ingredients that were once widely considered “natural,” even by the plaintiffs’ bar. For example, La Croix sparkling water, marketed as “innocent” and “all natural”, has been under fire in several suits. An October 2018 class action against the company alleges that the seltzer “in fact contains ingredients that have been identified by the Food and Drug Administration as synthetic” (including linalool, a chemical used in insecticides). That particular suit never offered proof of its claims (though it’s still hasn’t been dismissed), but a case filed in New York’s Southern District in January 2019 claims that in a laboratory analysis, samples of La Croix were found to “contain synthetic ingredients ranging from 36% to 98%.” La Croix strongly denied these allegations, offering an analysis by an accredited independent lab that found “no trace of artificial or synthetic additives.” Both cases against the beverage company are still pending, with the courts previously granting stays as they wait for the FDA to make some headway toward a definition of the term ‘natural.’

And litigants continue to get creative. In June 2019, a consumer brought suit against Danone North America, claiming that its labels on its Dannon and Oikos products are misleading because they feature “vanilla with other natural flavors” when in reality, these products contain “less vanilla flavor derived from vanilla beans than their name suggests.” Andriulli v. Danone N. Am., No. 19-5165 (S.D.N.Y., filed June 2, 2019). The Danone plaintiff claims that the yogurt flavor “should be labeled ‘Vanilla-Vanillin Extract/Flavoring/Powder, Imitation’ so consumers are not misled as to the flavor of the Products.” This is another misleading label suit likely to gain some traction in upcoming months.

As plaintiffs’ claims become more nuanced and focused on individual ingredients, litigants have continued success in these suits. Expect to see this trend continue into 2020, especially while the FDA’s definition of the term ‘natural’ remains in flux. In light of this, food manufacturers and growers should take special care to ensure their label clearly identifies any ingredients considered synthetic.

For more information on food labeling regulation and litigation, please contact Sarah Firnschild at (313) 223-3025, sfirnschild@dickinsonwright.com or Samantha Pattwell at (517) 927-4776, spattwell@dickinsonwright.com.