Lawsuits against food producers marketing products as “all natural” and “100% percent 
natural” understandably make food makers nervous. Once named in a class action suit, the cost of defending the case, whether it has merit or not, can put a real strain on small food makers. Unfortunately, other than avoiding the use of the “all natural” claim altogether, there are not many clear legal rules to follow, in part because the use of the claim “natural” is largely unregulated by federal agencies. The exception is the U.S. Department of Agriculture, which has outlined some requirements for natural claims associated with meat and poultry.
There are some commonsense measures food makers can take, however, to evaluate and possibly minimize the risk of being the next named defendant. By way of background, a survey of the pending class action cases shows that the “natural” cases tend to ask courts to resolve the following questions:
1) Are processed sugars and sweeteners natural?
2) Are foods containing GMOs natural?
3) Are foods containing certain synthetic preservatives natural, and
4) At some point, does a certain method or extent of processing render a product no longer natural?
Food makers labeling products as “all natural” can use these questions as an initial filter to assess legal risk by evaluating if the products they sell contain the ingredients or use the processes that have been the basis of complaints in prior or pending cases.
There are other measures food makers can take to protect themselves. Obviously, removing the “all natural” claim is the surest way to avoid a class action suit. But, before conceding defeat, natural food product makers should consult with their scientists and supply chain professionals to carefully review their ingredient lists. Does the product contain ingredients that the average customer can pronounce without thinking too hard? Are some ingredients difficult to source or certify as non-GMO? It can be important in this evaluation to clarify internally what the use of the claim “all natural” means to the company.
With sound information, there are also precautions food makers can take. For example, can the “all natural” claim be qualified by specifying what aspect of the product or which ingredient(s) are “all natural.” Consider also, if there are alternative terms that can effectively and accurately describe the product, such as made with “only simple ingredients.” With similar efforts to clarify or rephrase “all natural” claims some of the risk associated with those terms may be avoided.
There are, of course, numerous other issues that arise when claiming that products are “all natural”, and we can’t cover them all in this article. These examples are intended as general information and not specific legal advice. Products and situations can be unique and we encourage food producers to speak with an attorney if they have questions about their specific situation.
The article appeared in The Griffin Report of Food Marketing, May 2013
