In AEP v. Connecticut, the U.S. Supreme Court unanimously declared that questions of a political nature are best decided by the democratic legislative process, not by litigation through the courts.
Unfortunately, the AEP message did not get to everyone. Plaintiffs in recently launched lawsuits against Frito-Lay are asking the judiciary to clarify a term which has become quite politicized: “natural.” And by bringing the suits as class actions, the lawyers are looking to enrich themselves at the expense of Frito-Lay – the potential victim of a currently undefined, and highly disputed, term.
The suits in California and New York allege that Frito-Lay unfairly promoted Tostitos and SunChips as “all-natural” when, according to the plaintiffs, the products contain corn and vegetable oils from genetically modified plants. (Reuters) The complaint filed in Eastern District of New York by a plaintiff (ironically) named Shake, notes, “The reasonable consumer assumes that GMOs [genetically modified organisms] are not ‘all natural.’ Thus, Tostitos’ and SunChips’ advertising is deceptive to consumers.”
But is it right to assume that everyone thinks GMOs are not “all natural”? I don’t know; I’m not a scientist. I do know, however, that the term is heavily contested. Many in the industry think that genetically identical seeds can be classified as natural. Frito-Lay is certainly one organization that holds this opinion. To be clear, Frito-Lay did not try to deceive its consumers – it did not add unnatural ingredients to its chips at the very end of the production. Rather, it took a seed that had already gone to market as “naturally produced” and used it in its chips.
Others challenge the suit’s assertion based on the seeming universality of GMOs. Registered dietitian Katie Clark writes GMOs are the “new normal.” In a blog post, she relates these facts:
- 94% of US planted soybean is now genetically modified – ending up in your food supply as soybean oil.
- 73-75% of US planted cotton is now genetically modified – ending up in your food supply as cottonseed oil.
- 65-72% of US planted corn is now genetically modified – ending up in your food supply as high fructose corn syrup, animal feed for beef and corn oil. (USDA’s Economic Research Service via Fiberisthefuture.com)
- Upwards of 70 % of processed foods on supermarket shelves – from soda to soup, crackers to condiments – contain genetically-engineered ingredients. (Center for Food Safety via Food Safety News)
As stated, I’m not going to say what is natural and unnatural. But Frito-Lay should not be blamed for behaving in a way that is consistent with many in the industry and without violating any clear definition of the term “natural.”
Instead, it is Congress and the regulatory bodies that are responsible for the confusion. As noted by the Reuters article on this subject, “there is no comprehensive, formal definition of the term ‘natural’ when it is used on food labels.” (Reuters) Additionally, in 2011, the Center for Food Safety petitioned the FDA to require food containing genetically modified ingredients be clearly labeled. The FDA declined.
Opponents of the classification of GMOs as natural should redirect their fire away from Frito-Lay and toward Congress and federal regulators. Frito-Lay is simply playing by the rules as it understands them. If these politically charged rules are to be changed, it should be Congress who does it. This is exactly what AEP taught. Consider this passage from a new WLF Working Paper on AEP, “Justice Ginsburg and a unanimous Supreme Court foresaw the political branches, including expert administrative agencies like EPA, as the appropriate arena for resolving complex, scientific, national … questions.”
Asking the judiciary to resolve political questions not only treads on the Constitution’s notion of separation of powers; it also imposes needless time and financial costs on the business defendants. A great number of organizations are operating under the same assumption as Frito-Lay – that ingredients created through GMOs are natural. ConAgra has already been sued for its use of “all-natural” and many other suits will follow this Frito-Lay case if the courts do not act quickly.
By act quickly I mean the following: As with AEP, the courts should throw out the “all-natural” cases against Frito-Lay and discourage any future similar suits until Congress has defined the highly-politicized term “natural.” If Congress and the FDA define “natural” as completely free from products using GMO ingredients, then Frito-Lay would discontinue its current advertising campaign. Until then, however, Frito-Lay should not be punished for Congress’s failure to define a vague and politicized term.