The FDA recently reaffirmed the meaninglessness of the term “Natural” in food marketing and labeling, in its January 6 letter to 3 separate courts considering false advertising claims against food manufacturers for dubious use of the term. The FDA’s unwillingness to settle the issue has a long and storied past, as summarized below.
“Natural” is the single most frequently-used marketing claim on U.S. food products, despite the fact that it is virtually meaningless. I think its general appeal and brevity make it an enticing word for food marketers, particularly on the package label, which is prime real estate. Brevity is not only the soul of wit – it is the soul of marketing. Coupling this with a history of defying definition, the term “Natural” stands in a category by itself when it comes to ambiguous and misleading terms used on food labels.
The term “natural” does not connote anything about the nutritional value of the food to which it is attached. In fact, the foods most likely to be labeled “natural” are foods that are maximally processed, not the whole or minimally-processed foods to which many consumers believe the term more “naturally” applies.
In an effort to capitalize on the popularity of organic foods, many food marketers couple the term “natural” with the term “organic.” But, the term “organic” has a legal meaning. The National Organic Program establishes standards for foods to be labeled organic. “Natural,” on the other hand, means very little.
There are no statutes, regulations, or industry standards regulating use of this term. Indeed, the term has an extensive history of “almost” being defined by regulation, but not quite getting there. Last year, this inaction by the FDA led a federal court to decline to refer a case to the FDA to determine whether products containing High Fructose Corn Syrup (HFCS) may be labeled “natural,” determining that doing so would be futile:
[I]n repeatedly declining to promulgate regulations governing the use of “natural” as it applies to food products, the FDA has signaled a relative lack of interest in devoting its limited resources to what it evidently considers a minor issue, or in establishing some “uniformity in administration” with regard to the use of “natural” in food labels. Accordingly, any referral to the FDA would likely prove futile.
See May 10, 2013 decision of the U.S. District Court for the Northern District of California in Janney v. General Mills . The January 6 FDA letter demonstrates what the Janney court already knew – the FDA’s long history of nearly, but not quite, defining the term continues to this day.
1. 1974 – the FTC tried to define the term, but ultimately gave up.The first attempts to define the term “natural” did not come from the FDA (or even the USDA), but from the Federal Trade Commission (FTC), in 1974, under its charge to regulate false and misleading advertising. The FTC considered adopting a rule regulating use of the term “natural” so that it applied only to foods with only minimal processing and no artificial ingredients. But, the FTC discovered that it had taken on a daunting task, given the range of products to which the term could apply and the myriad stakeholders with an interest in ensuring either an ambiguous or a meaningful definition. When it terminated the effort in 1983, the FTC issued an official comment, explaining:
Quite aside from the significant difficulties that would be posed in enforcing this rule, a fundamental problem exists by virtue of the fact that the context in which “natural” is used determines its meaning. It is unlikely that consumers expect the same thing from a natural apple as they do from natural ice cream …. We should concentrate our resources on more serious consumer protection problems than addressing whether a claim that “milk is a natural,” is deceptive.
2. 1978 – USDA and FDA hop on board with the FTC in an effort to define the term and do no better than the FTC had done alone. Three agencies collaborated in 1978 in an effort to define the term: the Food Safety and Inspection Service (FSIS) within the USDA, the FDA, and the FTC. The agencies held public hearings on a variety of issues of joint concern, including whether to formally define the term “natural.”Though the FDA and FSIS tried to form policies governing the term, the agencies ultimately failed to issue a formal regulation. The term “natural” remained undefined.
3. 1990 – the Nutrition Labeling Education Act (NLEA) is adopted. Other issues took the agencies’ attention during the 1980’s, including regulation of nutrient content and other health-related claims, such as “low calorie,” “sodium free,” and similar terms. “Natural” moved down the list of priorities.In 1990, Congress enacted the Nutrition Labeling Education Act (NLEA), which in part gave the FDA power to define certain terms used in health- and nutrition-related marketing claims and explicitly directed the FDA to define certain terms (such as “light”), but “natural” was not one of these terms.
4. 1991 – FDA policy statement on “Natural”
In 1991, FDA published an “informal policy” in the Federal Register, defining “natural” to mean:
. . . that nothing artificial or synthetic (including colors regardless of source) is included in, or has been added to, the product that would not normally be expected to be there.
While this policy statement provides little guidance and does not have the force of law, there are some effects arising from its issuance. First, the FDA cannot punish parties who label their products in accordance with the policy. In addition, the FDA must follow its determinations regarding the use of the term “until [they are] amended or revoked.” The FDA may, however, take action against those whose product labels violate the policy.
5. 2005 – 2007: FDA Stays the Course Although it seems to recognize the confusion wrought by failing to define the term, the FDA continues to resist defining the term through notice and comment rule making. In 2005, the FDA’s response to a petition requesting a definition of the term, in which it referred back to the 1993 final rule following proposed rulemaking to define the term cited resource limitations in its decision not to propose a rule:
As we stated in the preamble to the January 6, 1993 final rule, after reviewing and considering the comments, the agency continues to believe that, if the term ‘“natural” is adequately defined, the ambiguity surrounding use of this term that results in misleading claims could be abated. However, as the comments reflect, there are many facets of this issue that the agency will have to carefully consider if it undertakes a rulemaking to define the term “natural.” Because of resource limitations and other agency priorities, FDA, is not undertaking rulemaking to establish a definition for “natural” at this time.
6. Where are we now?
The January 6 letter from the FDA reaffirms the non-position on this issue that has been on its website for a long time:
From a food science perspective, it is difficult to define a food product that is ‘natural’ because the food has probably been processed and is no longer the product of the earth. That said, FDA has not developed a definition for use of the term natural or its derivatives. However, the agency has not objected to the use of the term if the food does not contain added color, artificial flavors, or synthetic substances.
So, we have a non-binding regulatory policy ambiguously defining a ubiquitous marketing term. Seems likely to lead to litigation – and it has. As described in the history above, the only “authority” defining the term is an FDA policy statement issued in 1991—a policy statement a federal appeals court recently determined does not have the force of law. See Holk v. Snapple Beverage Corp., (2009). Despite a lot of litigation, no courts have determined what the term means or whether use of it is misleading in connection with foods containing certain ingredients, such as High Fructose Corn Syrup.
I think many of us are becoming more savvy at recognizing that these terms are mere marketing and mean nothing about the quality or ingredients included in the product. But, many more people still must be influenced (at least subliminally) by use of these ambiguous marketing terms, because they are still the most frequent terms used on processed food labels. All I can say to that is caveat emptor and that shopping locally and avoiding processed food are great ways to ensure that what you are eating is truly “natural.”
Covering my bases: There is no legal advice contained in this post. Legal advice entails applying the law to specific facts. I don’t know what your facts are and any resemblance to them here is purely coincidental. Instead, this post is meant to provide general information, which may or may not be complete and accurate. If you need legal guidance, please feel free to contact me using the contact information on my firm’s web site – www.westbendlaw.com.
A final note: In preparing this article, I borrowed heavily from my own article from my blog at www.realfoodlaw.com. I wanted to note this for anyone who may have noticed this and thought I did not give proper credit to the author. Borrowing from yourself is not plagiarism – it’s wise repurposing of material that required a significant investment of research time.