Is Your ‘Natural’ Granola Bar Really Natural?6 Aug, 2013 By: Arthur Yoon, Jeffrey Richter
In a class action lawsuit (Judith Janney v. General Mills) filed by purchasers of General Mills’ “Nature Valley” line of granola bars, the plaintiffs claim that the product packaging and advertising of certain Nature Valley products is deceptive because the products – which contain the sweeteners high fructose corn syrup, high maltose corn syrup, maltodextrin and rice maltodextrin – are labeled “natural.” The plaintiffs claim that General Mills’ labeling of its products as “natural” when they allegedly contained artificial ingredients violated the California Consumers Legal Remedies Act, Unfair Competition Law, and False Advertising Law.
General Mills, however, sought dismissal of the lawsuit, arguing that any decision regarding the meaning and use of the label “natural” should be made by the U.S. Food and Drug Administration (FDA). Thus, the court needed to resolve a threshold issue – whether it could decide that an advertiser’s marketing of its products as “natural” misled consumers because those products allegedly contained artificial ingredients or whether that issue could only be decided by FDA.
General Mills sought dismissal of the lawsuit contending that the claims should be dismissed under the so-called “primary jurisdiction doctrine.” Under this doctrine, courts may determine that the initial decision-making responsibility should be made by the relevant federal agency rather than the courts. General Mills argued that the question whether food products are “natural” is best left to the FDA’s regulatory authority. According to General Mills, food labeling is an issue that Congress has placed within the primary jurisdiction of the FDA; food labels are indisputably subject to comprehensive regulatory authority by the FDA (and that under that authority, the FDA has adopted a policy for the use of “natural,” which it enforces through administrative action); and the FDA’s enforcement of its “natural” policy for food labeling is an issue that requires the agency’s expertise and uniformity in administration.
According to the plaintiffs, General Mills deceptively uses the term “natural” to describe products containing ingredients that have been fundamentally altered from their natural state and cannot be considered minimally processed, and that the use of “natural” to describe such products creates customer confusion and is deceptive. The plaintiffs contend that the term “natural” is pervasive and prominent on the packaging and advertising of Nature Valley products, and that General Mills reinforces the image of its products as all-natural on the Nature Valley website, and through social media accounts on Twitter, Facebook and YouTube.
General Mills allegedly uses images of forests, mountains, and seaside landscapes to capitalize on consumers’ preference for all-natural foods and the association between such foods and a wholesome way of life. The plaintiffs claim that the term “natural” can only apply to products that contain no artificial ingredients and that consist entirely of ingredients that are only minimally processed. Importantly, the plaintiffs argued that they were not asking the court to define “natural” but rather to decide a question of state law – whether General Mills’ marketing of its Nature Valley products as “natural” could mislead reasonable consumers in violation of California law?
Recognizing that the question was a close one, the court found in favor of the plaintiffs – at least at this stage of the litigation. It noted that the term “natural” is not defined in the federal Food, Drug and Cosmetic Act, and that the FDA has expressly declined to define “natural” in any regulation or formal policy statement. Although the FDA has issued a number of warning letters to companies who have used the term “natural” in labels for food products that contain various preservatives, the FDA had taken little action against companies for improperly using the term.
In repeatedly declining to promulgate regulations governing the use of “natural” as it applies to food products, in the court’s view, the FDA has signaled a relative lack of interest in devoting its limited resources to what it evidently considers a minor issue, or in establishing some uniformity in administration with regard to the use of “natural” in food labels. Because referring the case to the FDA would not likely result in any action by the federal agency, the court declined to apply the primary jurisdiction doctrine. Accordingly, the court refused to dismiss the case and the plaintiffs were permitted to proceed with their lawsuit.