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Legal battle rages over 'natural' food

| Saturday, Sept. 9, 2017, 7:06 p.m.
An employee restocks a shelf in the grocery section of a Wal-Mart Supercenter on May 11, 2005 in Troy, Ohio.
An employee restocks a shelf in the grocery section of a Wal-Mart Supercenter on May 11, 2005 in Troy, Ohio.

More than a year after the Food and Drug Administration signaled that it would soon nail down exactly what the word “natural” means, the agency has yet to provide any guidance — and baffled consumers are suing.

They've sued Sargento, the dairy giant, because the cows behind its “natural” cheeses are given genetically modified feed.

They've sued Walmart over its “all-natural” pita chips, which contain thiamine mononitrate and folic acid — both B vitamins that are made synthetically.

They've even sued HINT, which makes “all-natural” fruit-flavored waters, for using a common solvent to boost the drink's taste.

Since January, court filings show that there's been an uptick in lawsuits against food companies regarding “all-natural” and “natural” claims - and some lawyers say the FDA's continued silence is to blame.

Nineteen all-natural class actions have been filed this year, as of July 2017. There were 27 such suits for the entire year of 2016.

The suits were brought by individual consumers, or small groups of consumers, on behalf of everyone who purchased a given product. The law suits frequently claim that “natural” labels tricked shoppers into buying a more expensive cheese - or flavored water, or pita chip - by deceiving them about how the product was made. A handful of law firms filed the majority of complaints.

“It's really striking that we're seeing this return to the types of claims we were seeing two years ago,” said Charles Sipos, a partner at the law firm Perkins Coie, who defends food manufacturers. “Plaintiffs are arguing that the FDA hasn't acted yet, and that's tantamount to an admission they're not going to act.”

Judges, consumer groups and even manufacturers have long called on government to intervene in the fraught debate over what the word “natural” means on a food label - much like the words “wholesome” and “pure,” which have also been the subject of lawsuits.

For manufacturers, such guidance would clarify the rules of the game, helping them avoid future legal action. For consumer groups, the concern is that shoppers don't understand what they're buying when they shell out more money for “natural” products.

Consumers seek out “natural” label

According to a 2016 survey by Consumer Reports, 73 percent of consumers seek out products with the “natural” label. But many erroneously believe it indicates a food does not contain synthetic, highly processed or genetically modified ingredients, when in fact there are no clear rules for what “natural” is and isn't.

Unofficially, the FDA says it expects natural foods to have “nothing artificial or synthetic (including all color additives, regardless of source)” added.

In 2015, after more than 100 lawsuits and several requests from judges, the FDA agreed to take up the question and began soliciting comments from the public. The deadline, initially set for February 2016, was delayed until May of that year. The agency has been mum since then on what action it plans to take.

Deborah Kotz, a spokesperson for FDA, said the agency is “currently reviewing comments submitted ... on use of the term “natural” on food labels to help determine next steps.” She did not specify when those next steps could be expected. (The rule-making process is typically a time-consuming one, and does not appear to have any direct link to the change in administrations.)

Until then, food manufacturers are contending with a new wave of “all-natural” lawsuits - including those aimed at Sargento, Walmart and HINT. In addition to the looming FDA question, a January ruling in California district court that makes it easier to register class action suits has made these companies vulnerable to litigation.

The Sargento case is especially interesting, as it does not allege that the company's “natural” cheeses contain ingredients that are artificial or genetically modified, themselves. Instead, the case claims that the cows that produce Sargento's milk have eaten genetically modified feed, or been treated with hormones or antibiotics.

“Reasonable consumers believe that if a cow consumes GMO grass, corn, or soy, or is given rbST, and then produces cream, the casein is not ‘Natural' and products derived from the casein, such as cheese, are likewise not ‘Natural,'” the complaint reads.

The plaintiff, Brittany Stanton, is a Seattle woman who used to buy Sargento cheese. She is represented by Michael Reese, an attorney who has filed numerous “all-natural” class actions on behalf of a range of consumers, and against a number of companies.

Lawyers for Sargento have pushed back, arguing that the claims are “without legal basis.” The company has also said that it's inappropriate for these decisions to be made by anyone beside FDA, a common refrain among food class-action critics.

The Institute for Legal Reform — an affiliate of the U.S. Chamber of Commerce, which has pushed for broad changes to the class-action system — maintains that these suits are little more than lawyerly tricks, intended to earn big fees for attorneys and next to nothing for plaintiffs.

They point to the recent proposed settlement in the Subway foot-long case, which claimed the chain's sandwiches aren't always 12 inches long: It would have awarded more than $500,000 to plaintiff's attorneys, and $500 each to a handful of plaintiffs. A judge in Milwaukee threw the settlement out this week, calling the whole case a “racket.”

That's true of most “all-natural” suits as well, the institute says. It claims that most consumers are hurt by food class-actions because companies may raise their prices to cover the cost of fighting litigation.

“The consumers are really getting nothing,” said Lisa Rickard, the president of the Institute for Legal Reform. “But the lawyers are walking away with huge settlements. It's ridiculous.”

That said, even Rickard acknowledges that food class-actions can serve a legitimate purpose. As the food law scholar Nicole Negowetti argued in a paper for Brookings in 2014, some of these suits -- originally a tactic of public health groups, concerned about lax FDA enforcement -- can identify gaps in existing regulation and force FDA to close them.

That is certainly what began to happen in the case of “natural,” said Sipos, the Perkins Coie attorney. Now he and other lawyers who defend food-makers are hoping to see the agency finish what it started.

Until then, Sipos and others aren't expecting the trend to change.

“This seems to be where the cases are for the time being,” he said. “The only difference right now is that we're seeing more of them.”

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