Court finds “natural” labeling logic “troubling” enough to let case proceed

Posted by
June 12, 2012

Would a “reasonable consumer” be misled by a package of Fruit Roll-Ups claiming to be “made with real fruit” that doesn’t actually contain any? Quite possibly, said a California court in recently allowing a case against General Mills to go forward.

A complaint filed last October by the Center for Science in the Public Interest claims that although the packaging made the products appear to be nutritious, they were in fact “little better than candy.”

General Mills claimed the snacks (which contain trans-fats and artificial colors, but no actual fruit) were never represented as being “healthful or nutritious,” and that the label “plainly disclose(s)” all those ‘fruitless’ ingredients. The company argued, in asking that the case be dismissed, that “made with real fruit” is a legitimate label claim, and that “reasonable consumers” would not take it to mean there are specific fruits or amounts of fruit in the product.

While the court disagreed with that premise, saying that consumers may “…believe that product is made with real strawberries, and not pears from concentrate,” it acknowledged that FDA regulations allow for fruit to be advertised on food products that contain only “natural” flavors. Although describing the regulation’s logic as “troubling,” the Court said it was nonetheless “bound to apply it…So long as that product ‘contains natural flavor’ which is ‘derived from’ the ‘characterizing food ingredient,’ it will not run afoul of the regulation,” it noted.

A similar case, filed in February against PepsiCo’s SoBe “all natural” beverages was recently dismissed under the premise that the so-called “reasonable consumer” would be able to see through all the “ambiguity” created by calling the SoBe drinks fruity, natural-sounding names such as black cherry dragonfruit and strawberry kiwi lemonade, simply by reading the ingredient list.

Despite all that, it now appears that the “reasonable consumer” may finally be given his or her day in court, with Fruit Roll-Ups as the test case that could determine whether such fruity labeling really is “clear” to that hypothetical individual and whether it will continue to be permitted.

Stevia products now join the lineup in “natural” litigation

Additional “natural” lawsuits include a class-action filed in California against Jamba Juice and its “all natural” smoothies, which the complaint alleges contains “unnaturally processed, synthetic and/or non-natural ingredients…” including stevia.

The lawsuit states that “…calcium hydroxide and aluminum sulfate” may be used in the extraction process, and that steviol glycosides are “demineralized and decolorized…”

Stevia, which has a long and twisted regulatory history, was not permitted as a sweetener prior to the success of PureVia brand in “self” determining its product to be GRAS, or “generally recognized as safe,” in May of 2008. PureVia, it turns out, was a joint effort of PepsiCo and another company, Merisant, a spinoff of Monsanto – the makers of NutraSweet, the original brand name for aspartame, which, interestingly enough, was thought to be the source of the“trade complaint” that resulted in the FDA issuing an “import alert,” which effectively kept stevia off the market (except in supplement form) for decades.

Other companies soon climbed aboard the stevia bandwagon. Truvia, for example, is a stevia-based product manufactured by Cargill – which also brings us loads of high fructose corn syrup.

But is this supermarket stevia really a “natural” extract of a naturally sweet leaf, or does it simply represent another commercial food-science experiment with what once-upon-a-time was a real food?

While courts continue to be kept busy attempting to define what’s “natural” and what isn’t, one group, appropriately named the Natural Products Association (NPA), which already has developed its own seal of naturalness for personal care and home-cleaning items, has begun testing the waters by introducing a similar concept for food items.

Helped along by the fact that the FDA has declined to provide its own definition of “natural,” the NPA is still working out the details of how such a seal of approval would be developed.

Cara Welch, vice president of scientific and regulatory affairs at NPA told on-line trade pub that products bearing the seal-to-be would be naturally sourced, and “non-qualifying” ingredients would include, modified starch, high fructose corn syrup and hydrogenated vegetable oils.

Of course, if you’d rather not wait for the NPA to get its labeling act together, you can always find truly “natural” foods simply by looking for ones with no ingredient labels at all – such as “real” fruits and vegetables.