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Perfectly “natural” to be Concerned by Recent Food Labelling Lawsuits

June 26, 2013

The last three years have seen several class-action law suits filed regarding misleading “natural” or “all natural” food claims.

For example, a proposed $7.5 million settlement was reached early last year in three separate class action law suits against Unilever and Ben & Jerry’s relating to ice cream labelled as “all natural”, when it actually contained cocoa alkalized with potassium carbonate, a man-made synthetic ingredient (Thurston et al v. Conopco, Inc., Case No. 10-04937-PJH; Corriette, et al. v. Unilever, Case No. 11-1811-PJH; and Astiana v. Ben & Jerry Homemade Inc., Case No. 10-4387-PJH). Although initially approved, the US District Court Judge denied final approval of the settlement due to concerns about the size of the award and the amount of attorneys’ fees, the case is noteworthy that it was commenced in the first place.

In Canada, long ago, in response to concerns over potential misuse of the word “natural”, the Canadian Food Inspection Agency (“CFIA”) took the step of defining “natural” foods and ingredients as those that have not been “submitted to processes that have significantly altered their original physical, chemical or biological state” in its Guide to Food Labelling and Advertising (the “Guide”) (Section  4.7). Although some ambiguity remains on the scope of the term “significantly altered”, the Guide does give direction to the food industry on how to use the word “natural” without being misleading.

In the US, the Food and Drug Administration (“FDA”) has remained reluctant to define the term “natural” (58 Fed. Reg. 2302, 2407) and the courts have not provided significant clarification. Until a definition exists in the US, food advertisers should be diligent about their ingredients and the extent to which those ingredients have been processed, and should consider accompanying “natural” claims with explanatory statements setting out what is intended by the word.

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