By Ashby Jones, Wall Street Journal
From ice cream to salad dressing, and potato chips to pet food, health-conscious grocery shoppers can choose an “all natural” version of just about anything.
But one item ingredient-conscious consumers can’t pluck off the shelves: an official definition of “natural.”
A recent spate of consumer lawsuits allege that food companies are playing fast-and-loose with the “all natural” designation, effectively committing fraud against the shopping public. But determining fraud becomes complicated when the federal government itself concedes the rule book is vague.
“The word hasn’t been defined well enough at all, so for years companies have been able to get away with basically defining it themselves,” said Michele Simon, an author and food-policy expert.
Wesson cooking oils, Kashi cereals, Arizona-brand drinks and an alcoholic beverage called Skinnygirl Margarita are among the products named in recent lawsuits, with allegations that claims of being “all natural” are undercut by various ingredients.
Many lawyers and legal experts blame much of the controversy on the Food and Drug Administration, the federal agency charged with regulating most packaged foods and drinks.
The FDA has largely declined to define the term “natural” despite repeated requests from industry and others.
“We badly want them to provide some clarity on the issue, but they’ve repeatedly failed to do anything,” said Stephen Gardner, a lawyer with the Center for Science in the Public Interest, a food-industry watchdog group.
The most meaningful guidance provided by the FDA is a vague “informal policy” written by the agency more than 20 years ago defining “natural” to mean “nothing artificial or synthetic… is included in, or has been added to, the product that would not normally be expected to be there.”
To the untrained grocery-aisle shopper, that might seem simple. But often the distinction between “artificial” or “synthetic” and “natural” isn’t so clear.
Consider, for instance, high-fructose corn syrup, a widely used sweetener at the center of a lawsuit playing out in Los Angeles federal court between Big Sugar and Big Corn. (Please see related article, page B2.) One question at the heart of the suit: Is refined corn syrup as natural as refined cane sugar?
According to Ricardo Carvajal, a former FDA lawyer now in private practice counseling food and drug makers, the FDA generated a firestorm in 2008 when it pronounced that high-fructose corn syrup is not “natural.”
But in a subsequent pronouncement on the issue, the FDA told the Corn Refiners Association that the answer depended largely on the manner in which synthetic ingredients were used to make the corn syrup and had to be determined on a “case-by-case basis.”
In other words, “deciding whether something is natural is often a highly complex—and highly technical—question,” said Mr. Carvajal.
A spokeswoman for the FDA, Siobhan DeLancey, acknowledged the agency has punted on defining “natural,” but defended its approach.
“With the few precious dollars the FDA has, we largely choose to focus on topics that affect public safety,” she said. “The ‘natural’ issue doesn’t. That’s not to say it’s not important, but we frankly have more pressing things to deal with.”
Increasingly, lawyers are taking the question to court. In June, ConAgra Foods Inc. was sued by Milberg LLP in federal court in Los Angeles on behalf of a potential class of consumers.
The allegation: that ConAgra’s use of the term “all natural” in regard to its Wesson oils violates consumer-fraud laws because they are made from genetically modified plants and organisms.
In early July, a New York firm filed a similar suit against ConAgra in federal court in Brooklyn.
ConAgra declined to comment on the litigation, but said “we stand behind the accuracy of our labeling.”
Earlier this month, a lawyer in Del Mar, Calif., sued Beam Global Spirits & Wine Inc. in San Diego federal court, alleging that it fraudulently labeled an alcoholic drink called Skinnygirl Margarita as “all natural” when it contains sodium benzoate, a preservative.
Beam Global called the Skinnygirl suit “frivolous,” adding: “We will defend our case vigorously and we are fully confident we will prevail.”
In late August, a lawyer in Houston sued cereal maker Kellogg Co. and its Kashi Co. subsidiary in federal court in San Diego, claiming that Kashi’s “all natural” products actually contain “a spectacular array of unnaturally processed and synthetic ingredients.”
Said a spokesman for Kashi: “Kashi provides comprehensive information about our foods to enable people to make well-informed choices. We stand behind our advertising and labeling practices.”
So far, recent “natural” cases haven’t played out in predictable or uniform fashion. Some have settled after companies agreed to tweak their packaging. Others are still pending, years after they were filed. But the cases, much like other varieties of class-actions against corporations, tend not to go to trial.
“Companies generally don’t want the financial and public-relations exposure from a jury trial,” said Mr. Gardner. So they often settle quickly, he said.
The cases haven’t been particularly lucrative for plaintiffs’ lawyers, at least when compared with large-scale securities or personal-injury suits. The terms of most settlements are kept confidential, but few of the settlements made public have reached the seven-figure level.
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