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The U.S. Food and Drug Administration (FDA)
maintains responsibility for the federal regula-
tion and oversight of labeling of most foods
(with some help from the U.S. Department of
Agriculture (USDA) for eggs, meat and poul-
try; and the Federal Trade Commission (FTC),
which focuses on advertising). Under broad
authority prescribed by the Federal Food,
Drug & Cosmetic Act (FDCA), FDA ensures that
food labels are neither false nor misleading by
regulating labeling claims. However, FDA has
for years struggled to define the term “natu-
ral” because nearly all foods undergo at least
minimal processing. As a result, no federal
definition currently exists and FDA has taken
few steps toward formally defining “natural”
and regulating its use.
“
FDA has for years struggled
to define the term ‘natural’
because nearly all foods
undergo at least minimal
processing.
”
FDA has relied upon an outdated 1993 infor-
mal policy that states that FDA will not object
to the use of a natural claim for foods that do
not contain added color, artificial flavor or syn-
thetic substances. FDA’s reluctance to define
natural claims has created much uncertainty
in the food industry and left companies with
little guidance regarding how such labeling
claims can and should be made. Meanwhile,
plaintiffs’ attorneys have capitalized on this
uncertainty by making the use of the term
“natural” on food labels a frequent target of
litigation in recent years, particularly in Califor-
nia. This problem has only been exacerbated
by the fact that these lawsuits have spawned
conflicting decisions that have muddled an
already uncertain terrain.
The primary arguments used to defeat these
“natural” cases are that (i) plaintiffs’ claims are
preempted, (ii) FDA has primary jurisdiction
over “natural” and (iii) plaintiffs have failed to
state a claim under consumer protection law.
As described below, these arguments have
had limited success.
Preemption
Preemption typically has been a successful
argument only in limited circumstances—
specifically, when “natural” claims are made
regarding USDA-regulated meat products.
See, e.g., Barnes v. Campbell Soup Co.
, No. 3:12-
cv-05185, 2013 WL 5530017 (N.D. Cal. July 25,
2013). In
Barnes
, defendants argued that the
plaintiffs’ allegations regarding Campbell’s
100% Natural Chicken Soup were preempted
by the Federal Meat Inspection Act (FMIA) and
the Poultry Products Inspection Act (PPIA).
Id
.
at *5. Pursuant to the FMIA and PPIA, USDA
pre-approves labels and determines whether
such labels are “false or misleading.”
Id
.
Accordingly, the defendants in
Barnes
argued
that because USDA previously had approved
the “100% Natural” label for its chicken soup,
its labels could not be construed as false or
misleading under state law.
Id
. The
Barnes
court agreed, finding that the chicken soup
labels were comparable to medical devices
that had gone through pre-market approval
and that claims related to the pre-approved
labels were preempted.
Conversely, courts have repeatedly declined
to find that “natural” claims are preempted by
the FDCA and the Nutrition Labeling and Edu-
cation Act (NLEA) because FDA has declined
to define “natural” and because the NLEA
