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Monday, July 22, 2019

FDA revisiting what 'natural' means on food labels; Efforts could affect pending class actions

By Anna Aguillard | Dec 3, 2015

WASHINGTON (Legal Newsline) – In light of a spark in class actions against food product manufacturers, the federal Food and Drug Administration announced recently that it is revisiting the use of the term “natural” on food labels.

On Nov. 10, the FDA issued a request for public comment on the use of the “natural” label, which is currently subject to general and possibly ambiguous federal regulation.

According to a 1993 non-binding guidance, the term “natural” simply means “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.”

Currently, manufacturers can interpret the word “normally” for themselves.

The FDA is specifically asking for the public to provide information on whether it should more specifically define the term “natural,” how it should define the term “natural,” and how it should determine appropriate use of the term on food labels.

According to the FDA’s release, its decision to take action came after it received three citizen petitions asking for a definition of the term “natural,” one asking to prohibit the use of the term “natural,” and multiple requests from federal courts for further clarification.

Jonathan Valentino, Partner at Armstrong Teasdale LLP, told Legal Newsline that such a nationwide call for action is “very difficult to ignore.”

However, he also said that the FDA’s request for public comment does not guarantee that it will increase its regulations or take any action at all.

“The FDA, based on the comments and information it receives at this stage, may still decide that it is not an endeavor worth pursuing further," Valentino said.

"If, however, the FDA determines that it should move forward, it would issue a proposed rule for additional public comment. Based on the comments received to the proposed rule, the FDA would then decide whether it should discontinue its efforts, issue a new proposed rule for further comment, or issue a final rule for publication in the Federal Register."

If the FDA pursues increased regulation, the process will “obviously” take time, Valentino said. However, it may eventually reduce the risk of litigation in the food manufacturing industry, as it would get rid of ambiguity associated with what a “natural” label actually means.

According to Valentino, even the current initial request for public comment may change the legal landscape for pending litigation.

“Defense counsel will likely rely on the FDA’s recent actions to reassert dismissal arguments based on federal preemption and primary jurisdiction, and will presumably ask that, at the very least, the actions by stayed while the FDA works through this process,” Valentino said.

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