Defining “All Natural”
The producers and retailers of products claiming to be natural typically defend false claims lawsuits on the basis that (1) the plaintiffs cannot prove they actually relied on the “natural” representation, (2) ingredients are plainly listed on the label and (3) the ingredients are “natural”. What “natural” means thus becomes an extremely significant issue. The dictionary definitions of “natural” are varied and broad: For example, it can mean “existing in or caused by nature” or “as if in nature.” Producers would argue that GMOs can exist in nature—once modified, many grow like any other organism. In fact, many of the fruits and vegetables that we readily consider natural today (grapefruit, for example) are the result of hybrids and/or genetic modification. And whether a food is like something in nature is certainly open to debate. Because virtually all foods are processed in some fashion, it would be difficult (and potentially arbitrary) to call some foods “natural” while saying others are not.
Of course, defining “all natural” in a legal sense will require spending significant sums for studies and experts, one side saying that high-fructose corn syrup (for instance) is simply cornstarch exposed to enzymes, each of which is natural, and the other side contending it is man-made and, therefore, not “natural.” These arguments continue apace in the wake of Proposition 37, not just in California but around the country.
Although the FDA first considered whether to define the term “natural” in 1993, it has declined to reach the issue because deciding what “natural” means was not a priority. With the notoriety of Proposition 37, however, that may change.
While the FDA has not expressly defined “natural” with respect to GMOs, when confronted with the issue, it has fallen back on its 1993 general statement that “natural” means “[a]ny food in which nothing artificial or synthetic has been included or has been added to a food that would not normally be expected to be in the food.” Of course, this again begs the question of what would “normally” be expected in food, especially where ingredients are on its label.
In any event, those that advocate a “common” definition of natural will likely have to recognize the ground that the FDA has already plowed.
The FDA’s positions and their impact on how “natural” will be defined raise the issue of preemption—specifically, if the FDA acts and defines natural to include GM food, would that preclude state action like Proposition 37? In its recent decision in Pom Wonderful LLC v. The Coca Cola Company, the Ninth Circuit held that federal law may preempt California law on food labeling. Indeed, state regulation may be preempted provided the federal government could act. Thus, even if Proposition 37 had passed, or perhaps even if one of the myriad lawsuits goes to judgment, the FDA could render this discussion moot through its inherent rulemaking power.