Cross-posted at WLF’s Forbes.com contributor site
In a 1960 opinion, Judge Henry Friendly began by asking “what is chicken?” While an amusing question–even children know a chicken when they see one–the query was more nuanced as a matter of law. California courts are finding themselves asking a similar question: what is “natural?”
Some products are intuitively so: with raw apples, almonds, or broccoli, it seems apparent. But what happens when you make apples into apple juice, or roast those almonds, or blanch that broccoli before freezing it for later use? These finished products are widely considered wholesome, and many would argue an almond is an almond (with the exception of the raw foods movement.)
The dictionary has fifteen different definitions for “natural”. The first is: “based on an inherent sense of right or wrong”–an intrinsically subjective definition. Given the ambiguous nature of the term, it’s no wonder the federal Food and Drug Administration (FDA) has been loath to come out and define “natural” for advertising and promotional purposes. But when businesses are begging the FDA to come in and regulate them, something must be amiss. And indeed, it is. Lawsuits contesting food companies’ use of the term “natural” have proliferated, most notably in the “Food Court,” i.e. the U.S. District Court for the Northern District of California. Businesses now simply want clarity. And if these lawsuits are really driven by concern for consumers’ well-being, so should the plaintiffs.
Clarity may be coming, but from a perhaps misguided source. The state of California is attempting to define the word as part of Proposition 37—an initiative on the state’s November ballot—which also requires mandatory labeling for genetically modified foods. Unlike the mandatory labeling provisions, which would go into effect July 1, 2014, the regulation of the word “natural” goes into effect upon enactment. One problem with states taking these matters into their own hands is that their decisions affect the standards for the entire nation. That is, companies must ensure all their products conform to one state’s standards, or figure out a way to label differently those products that will be sold in the regulating state. However, there is also the potential that state standards will conflict, putting producers and manufacturers in a difficult if not impossible position.
But another problem, as we’ve pointed out, is that California has suggested that a variety of products, products that are arguably natural, are simply not natural–to the cheers of organic companies (which are conspicuously exempt from these provisions). Prop 37 designates any processed food as unnatural, and uses a broad definition of the word “processed.” California has decided for the rest of us that apple juice, roasted almonds, and frozen broccoli are not natural.
What’s more, given the ongoing litigation in California courts, it is possible that judges will take judicial notice of Prop 37 in ongoing false advertising and other consumer fraud cases, and allow the state’s determination of what is natural to inform their understanding of what a reasonable consumer would consider misleading. California’s ill-advised standards should not influence the outcome of these suits–many of which are frivolous and headed by repeat plaintiffs’ firms and lead plaintiffs. It’s time for the FDA to step in and to stop the abuse of this term. In 2008, FDA declared they would continue to keep “natural” undefined in response to two petitions filed by the Sugar Association and Sara Lee. Again in 2010, after federal judges issued a six month stay in litigation over whether a product with high fructose corn syrup was “natural,” the FDA declined to issue guidance on the term. And yet in 2011, it sent out a warning letter alleging that a company’s use of “all natural” was false and misleading.
It seems natural that a definitive definition is in order.