Ninth Circuit revives 'natural' claims; Prof says courts left without government guidance

By Taryn Phaneuf | Mar 23, 2016

SAN FRANCISCO (Legal Newsline) — Without clear rules governing the use of the word “natural” on food product labels, consumers have turned to litigation to fill the gap, leading to hundreds of lawsuits accusing food and beverage companies of deceptive or misleading practices.

As cases continue to stack up, it’s clear that consumers have become more interested in what food labels mean, said Michael Roberts, a law professor and the executive director of the Resnick Program for Food Law & Policy at the University of California, Los Angeles.

“It reflects, I think, the failure by the government, namely the Food and Drug Administration, to define the word ‘natural,’” he said.

The U.S. Court of Appeals for the Ninth Circuit recently reversed a district court’s order to dismiss such a suit against the Hain Celestial Group — a New York-based company that features many natural and organic brands of food and personal care products, including Alba Botanica, which was mentioned in the suit.

Alessandra Balser and Ruth Kresha claimed the company’s use of the word “natural” is misleading because the products contain synthetic ingredients, according to court documents. The case was appealed to the Ninth Circuit after the U.S. District Court for the Central District of California dismissed the suit.

The Ninth Circuit sent the case back to the district court after determining that the suit shouldn’t have been dismissed because “whether a business practice is deceptive, misleading, or unfair is ordinarily a question of fact to be decided by a jury,” the decision stated.

The plaintiffs’ allege the use of “natural” on a food label means the product is free of synthetic ingredients. They claim they paid a premium price for the product based on the label.

They allege statements on the label, which also included “100 percent vegetarian,” could be seen as a claim that the products don’t contain any synthetic chemicals.

Fewer companies are using the term “natural” on their labels after realizing many consumers think the term is misleading, Roberts said, showing that the market is responding to consumers even if government regulation isn’t.

The FDA is currently seeking comments on “natural” food labels, but Roberts doesn’t think much will come of it. Similarly, Congress continues to discuss whether food products containing genetically modified ingredients should be labeled.

“if you don’t have the government — someone willing to step in — you have to figure out a legal theory,” Roberts said.

It appears to him that the courts are applying common sense in most cases. For example, claims that a product like Fruit Loops is misleading because it doesn’t contain real fruit was dismissed by a court.

“The trajectory of all of this is more about transparency,” Roberts said.

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