Nexus: Chapman's Journal of Law and Public Policy

Over the greater portion of the last decade there appears to be an ever-increasing food-consumer consciousness about the quality, health, and overall credibility of food produced in the nation. This consumer consciousness has led to the push, as well, towards a demand for “natural” or “organic” products. With this increasing food-consumer consciousness, there has been an accompanying discourse from the media, drawing attention to the interworkings of the American food industry, as well as highlighting and critiquing food producers and governmental regulation set upon these producers (e.g., documentaries such as Food, Inc. and King Corn, Michael Pollen’s novel The Omnivore’s Dilemma, and the newest installment of a day-time talk show, The Chew, which dedicates an hour to purely healthy diet and lifestyle choices). Moreover, this media attention is both a result and a cause of the increased consumer consciousness that affects both food industry and governmental reaction.

On any given day, a consumer can peruse through their average grocery store and find sections wholly dedicated to “natural” or “organic” products, and may find old favorites with new healthy face-lifts. Moreover, stores completely dedicated to the “all natural” or “organic” model have sprung up throughout the country (e.g., Whole Foods, Trader Joe’s, and Mother’s Market). The food industry has caught on board with this “all natural” or “organic” push, appeasing to the interests of “manic organic” consumers, using such labels to indicate to consumers that a product is free of unnatural ingredients, and thus assumed to be a healthier option for a consumer. However, producers are arguably also utilizing these labels as a clever marketing tool (fooling consumers who tend to not look beyond the larger labels on the front of product packaging into thinking this product is supreme or superior to those devoid of “natural” labels).

It would appear that governmental regulation is necessary to check and regulate the food industry and to protect consumers from being fooled by the food producers’ use of “natural” or “organic” labels simply as a marketing tool. However, to date, no governmental department has issued a definitive or working regulatory definition of “natural” and the definition existing for “organic” is fairly vague.

As to the definition of “organic,” the USDA’s National Organic Program (NOP) regulation provides a codified set of circumstances for food produced from agriculture to be labeled as organic. Specifically the regulation states in section 205.300 that the use of the term “organic” in labeling “may only be used on labels and in labeling of raw or processed agricultural products, including ingredients, that have been produced and handled in accordance with the regulations in this part.” 7 C.F.R. § 205.300(a) (2011). Moreover, it states that “the term, “organic,” may not be used in a product name to modify a nonorganic ingredient in the product.” Id. Moreover, the code lists nonagricultural substances—both nonsynthetic and synthetic—that are permitted as “ingredients in or on processed products labeled as ‘organic’ or ‘made with organic’” ingredients. 7 C.F.R. § 205.606 (2011). The FDA, however, has not provided any regulatory definition for “organic.”

As to the definition of “natural,” there is no official regulatory definition. The only working definitions available are an informal one issued by the FDA and one from the USDA that only applies to meat and poultry. The FDA’s informal definition for “natural” is “that nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food.” 58 Fed. Reg. 2302, 2407 (Jan. 6, 1993). FDA has made a stated policy declining to regulate the term “natural.” Chavez v. Blue Sky Natural Beverage Co., 268 F.R.D. 365, 370 (N.D. Cal. 2010). The USDA’s Food and Safety Inspection Service has provided what appears to be a legal definition for "natural," but it applies only to meat and poultry; "those products carrying the “natural” claim must not contain any artificial flavoring, color ingredients, chemical preservatives, or artificial or synthetic ingredients, and are only “minimally processed” defined by USDA as a process that does not fundamentally alter the raw product" (http://www.fsis.usda.gov/factsheets/meat_&_poultry_labeling_terms/index.asp).

Naturally, as a result, lawsuits have flowed from the use, or rather misuse, of “natural” and “organic” labels for products containing ingredients that consumers alleged did not fit the bill. Two current suits have been filed against large food producers, joining the growing number of such cases that have been filed for the same or similar issues, and both touch upon the key issue of a lack of a definitive working definition provided by governmental departments—Thurston v. Bear Naked, Inc. and Michael Bates v. Kashi Co.& Kellogg Co. Thurston v. Bear Naked, Inc., No. 11-cv-04678-LB (N.D. Cal. Sept. 21, 2011); Michael Bates v. Kashi Co. & Kellogg Co., No. 11-cv-1967-H-BGS (S.D. Cal. Aug. 24, 2011). The obvious issue created by the lack of a definitive definition of “natural” or “organic” is the uncertainty food producers will face when deciding whether their product may qualify under the FDA or USDA’s definitions (or lack thereof), as well as the ability for consumers to bring actions against producers who misuse such titles to the detriment of ill-informed. The result of these cases will be interesting, especially their potential impact on the FDA to codify a more precise regulatory definition for labeling of food products as “natural” or “organic.”

See also:

http://www.fdalawblog.net/fda_law_blog_hyman_phelps/2011/09/class-action-lawsuit-alleges-bear-naked-foods-not-natural.html http://www.fdalawblog.net/fda_law_blog_hyman_phelps/2011/09/new-twist-in-natural-lawsuit.html http://www.ams.usda.gov/AMSv1.0/nop http://www.naturalingredient.org/naturalingredients.htm http://www.fda.gov/ohrms/dockets/dockets/06p0094/06p-0094-cp00001-05-Tab-04-Food-Marketing-Institute-vol1.pdf http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=98c6a7f83847147d88b50c3bb0a4066d&rgn=div8&view=text&node=7:3.1.1.9.32.4.354.1&idno=7 Image References: http://www.realsimple.com/health/nutrition-diet/healthy-eating/food-labels-decoded-10000001712034/page2.html http://www.thedailygreen.com/healthy-eating/Food-Label-Decoder-451003