FDA Rules Against False "All Natural" Food Claims as Class Action Law Suits Multiply

Dec. 7, 2011 - PRLog -- The U.S. Food and Drug Administration [FDA] has issued a warning that a food product labeled as "natural' or "all natural" may be "false and misleading, and therefore . . misbranded" if it contains anything "artificial or synthetic . . . [something] not normally to be expected to be in the food"; a move likely to lend support to and encourage an ever-growing number of major class action law suits being filed on these grounds, says the public interest law professor whose earlier movement to use legal action as a weapon against obesity apparently inspired these new legal actions.

   These class action law suits are being filed, and upheld by judges, against companies like PepsiCo Inc., Kellogg, Coca-Cola, ConAgra, Ben & Jerry, Breyers, and others over the allegedly deceptive use of words like “natural” and "all natural" to describe food products  -- a development likely to both increase transparency in food advertising and ultimately to reduce obesity, says law professor John Banzhaf of the George Washington University Law School.

   The FDA warning came in an enforcement letter issued to Alexia about its Roasted Red Potatoes & Baby Portabella Mushrooms product which contains disodium dihydrogen pyrophosphate, a synthetic chemical preservative, but the letter also warned the company -- and, by implication, other companies making similar claims -- that "we note that your Alexia brand products market a number of food products with the 'All Natural' statement on the label. We recommend that you review all of your product labels to be consistent with our policy to avoid additional misbranding of your food products."

   Recently, courts have upheld suits charging that CokeCola's very use of the name Vitaminwater is deceptive, that claims by both Ben & Jerry's and Breyers that their ice creams were "natural" were fraudulent because the products contained alkalinized cocoa powder, and suits alleging that advertisements by Cargill, Inc. and Archer-Daniels-Miland that high-fructose corn syrup is "natural" "corn sugar" -- and that "your body can't tell the difference" -- violate the Lanham Act's false advertising provisions.

  Suits are also pending against Trader Joe's over claims that some of its cookies aren't really "all natural" because they contain synthetic ingredients such as potassium carbonate, and against Kellogg's Bear Naked and Kashi brands, PepsiCo's Naked Juice Company, and ConAgra Food, Inc.'s Pure Wesson Oil brand for their use of the term "natural."

   As the American Lawyer magazine recently noted, the exploding number of "all natural" law suits seems to have grown out of the movement started by Prof. Banzhaf several years ago to use legal action as a weapon against the problem of obesity, just as he had earlier done in leading the use of legal action as a weapon against smoking.  In the article's words, "Spurred in part by the obesity epidemic, suits such as this one target some of the biggest producers . . ."

   Several meetings and conferences devoted to the obesity and law topic brought together individuals and organizations who shared many related concerns about food -- food advertising to children, deceptive food advertising, the benefits of certain diets such as vegetarianism, unhealthy trans fats, etc. -- who became convinced that the tremendous and largely untapped power of legal action could be a powerful weapon which could be used alongside more traditional public health techniques such as public education and lobbying.

  The movement which Banzhaf started has now resulted in at least ten successful fat law suits which have forced food companies to fork out more than $20 million and make major changes in the way their products are advertised, promoted, and sold.  "The newer 'natural'  law suits should force companies to think twice before simply slapping an 'all natural' label on their products and their advertising, seeking to take advantage of vagueness in the definition of the word 'natural,' and in the hopes that people will be tricked into thinking that an 'all natural' product is safer or healthier," says Banzhaf.

   To win these law suits, plaintiffs may not necessarily have to show that the claim is expressly false, and/or that some identified people were in fact mislead to their detriment.  Under many state statutes, all the plaintiff must show is that the ad or label has a propensity or tendency to mislead.  In applying this standard, even statements which are technically true can nevertheless be illegal, and the judgment is based not on the brightest and most educated consumer, but rather on those who, because they may not be quite as smart or as educated, may be deceived by the wording, says Banzhaf.

   For example, the law suit which Banzhaf said started the new fat law suit movement, and which was put together by his law students, attacked a statement that McDonald's french fries were cooked in 100% pure vegetable oil.  Although the statement was technically true, many Hindus, Muslims, vegans, and others were mislead into thinking that they could consume the food without violating their beliefs against ingesting a beef product -- because they didn't realize that the product was subsequently re-cooked in beef fat before being served to them.

 McDonald's argued that the class action law suit was frivolous because its claim was true and therefore not false or deceptive, but the fast food giant was forced into a settlement which required it to pay $12.5 million, finally disclose that its french fries were subsequentlyre-cooked in beef fat, and to apologize for its unlawful actions.

   Similarly, in a case now pending, McDonald's was accused of misleading customers by failing to disclose that its Chicken McNuggets contained far more calories and fat than consumers would normally expect.  In upholding the legality of this deceptive-because-of-failure-to-disclose claim, the judge labeled the product a "McFrankenstein creation" because it had so much unexpected fat.

   Since consumers can't test or otherwise verify the meaning of terms such as "natural," the burden to avoid misrepresentation by properly labeling its product must be on the advertiser.  For example, Ben & Jerry's could simply label its ice creams as "all natural except for the addition of alkalinized cocoa powder" (if they agree that the powder isn't "natural") or "all natural including alkalinized cocoa power" (if they maintain that the powder is natural).  In either event, consumers will know that the ice cream contains this arguably-unnatural ingredient, and be able to make up their own minds.

   Unfortunately, for many consumers, the phrase "all natural" implies that a product is safer or healthier than other competing products, even though it may not be at all.  That's why using a term which has strong connotations for many people -- such as "natural," "all natural," "pure," etc. -- may be misleading, especially if it contains substances which reasonable people may believe are not in fact natural.

   When Banzhaf first started promoting legal action against fat as a weapon against obesity,  Fortune magazine and others argued that fat was the next tobacco.  Now, the lawyer seeking to defend Coke's use of the name Vitaminwater has proclaimed that "food labeling is in its infancy," and that it represents a "new battleground" for food companies like his client.  Prof. Banzhaf wholeheartedly agrees.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/

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John F. Banzhaf III is a Professor of Public Interest Law at George Washington University Law School [http://banzhaf.net/] where he is best known for his work regarding smoking, obesity, discrimination, food and auto safety, political corruption, etc.