While the USDA has defined natural, the FDA has only issued some general guidance, which says natural means “nothing artificial or synthetic - including all color additives regardless of source - has been included in or added to a food that would not normally be expected to be in the food”.
But where does this leave maltodextrin, steviol glycosides, soybean oil, alkalized cocoa, modified corn starch or a whole host of other ingredients, which may originate from a ‘natural’ source (a plant), but have been processed in such a fashion that a ‘reasonable consumer’ would no longer consider them to be ‘natural’?
And what about processing aids? They might not be in the final product, but if they are genetically engineered, does this mean you could be in legal hot water if you start using the term ‘natural’ to describe ingredients produced with the help of such aids?
Is your product ‘highly processed’?
Speaking at the FoodNavigator-USA Natural & Clean Label online forum - which was broadcast live yesterday and is now available on demand (click HERE), Kristen Polovoy of law firm Montgomery, McCracken said plaintiff’s lawyers are increasingly looking at the production process just as carefully as the end product.
And if genetic engineering is involved at any stage, firms should be very cautious about using the word ‘natural’, regardless of what’s detectable in the finished product, she warned.
“If you have any ingredients that originated with GMO seeds or GM processing [and you’re marketing your wares as ‘natural’], you have placed a target on your product to be subject to a lawsuit.
“GMO-related lawsuits have increased exponentially… and I don’t see in the immediate or even the long term horizon a broad federal policy or regulation with respect to GMO [labeling]. Requests have been made but I wouldn’t hang my hat on this in the hope that it will stop the bleeding.”
But genetic engineering aside, any form of processing is potentially problematic, she said, with the phrase ‘highly processed’ now appearing on several lawsuits, which take issue with the number as well as the nature, of the processing steps involved in turning something from a plant into a commercially available food ingredient.
“Any time you add another layer of processing to an ingredient you are exposing yourself to a lawsuit.”
What’s on today’s accepted ingredients list could be tomorrow’s villain
As for ‘red flag’ ingredients, calcium phosphate, potassium carbonates, maltodextrin, modified food starch, dextrin, xanthan gum, soybean oil (the GMO issue), and even steviol glycosides (owing to processing methods used by some manufacturers),have all been cited in recent lawsuits, she said.
And the list will likely grow, she said: “What’s on today’s accepted ingredients list could be tomorrow’s villain. If the latest popstar or whoever says ‘I started to feel good once I eliminated this from my diet’ then that could hit the ‘unacceptable ingredients’ list.”
So should firms just ditch ‘natural’ claims altogether to be on the safe side?
In many cases, they are, she said. But many are trying to reduce their risk by replacing blanket ‘100% natural’, ‘all-natural’ or ‘no artificial ingredients’ claims with more specific, or qualified statements.
“A lot of manufacturers have had a bad experience with all-natural so they are flipping the coin over and saying what the product does not have,” she added. “So that might be no artificial colors, or no artificial sweeteners. Or they are focusing on other specific attributes of their product.”
Late July CEO: ‘All-natural’ is just words; there’s no outside verification of what those words mean
Fellow panel member Nicole Dawes, CEO of Late July Organic Snacks, said that this approach was also better for consumers, who are increasingly distrustful of blanket ‘all-natural’ claims in any case.
“The reality is that ‘all natural’ is just words; there’s no outside verification of what those words mean. At Late July we made the decision a long time ago to only use verifiable claims.
“I want our consumers to have trust in our brand and feel that we are being completely transparent with them and the way best to do that is to use claims that are verifiable, so we use certified organic, Non-GMO Project verified, gluten-free verification and to me it removes that element of mystery.
“I’ve seen a shift in consumer attitudes in the 12 years we’ve been doing Late July from an acceptance of what’s said on packaging to a real desire to know what those words actually mean.”
It will just give manufacturers a cheaper and easier version of organic
But wouldn’t a definition of ‘natural’ clear up all the confusion?
Possibly, said Dawes, but it could also end up backfiring: “I start to get nervous when I hear people talk about defining natural. My grave fear is that if we take the time as an industry to define natural I see that essentially what we will have done is to provide consumers with a watered-down version of organic.
“I think it will just provide marketers a way to provide a lesser product to consumers. There are a lot of options out there to describe what’s in your product, we already have a lot of tools at our disposal to describe what’s in our products.”
As for natural vs organic, she said: “Consumers do not totally understand the difference between natural and organic. When the organic seal debuted I had all these high hopes but the sad reality is that consumers are still trying to figure out what it means.”
Click HERE to read part I of our report from our panel debate, which addressed the following questions:
- Do natural claims still resonate with consumers?
- Are all natural claims worth the legal hassle?
- Who is driving the natural & clean label agenda?
- Do shoppers understand the difference between natural and organic?
Click HERE to register to watch the debate - which was sponsored by Virun, Naturex, Corbion Purac and Kerry - on demand.
Click HERE to download a new report for the Food and Drug Law Institute (FDLI) by Steve Gardner, Amanda Howell and Erika Knudsen at the CSPI, entitled: A natural solution: Why should FDA define ‘natural’ foods?
Read FoodNavigator-USA’s exclusive vox pop on natural and clean label trends:
LEGAL VOX POP: Are 'all-natural' claims worth the hassle?