Food fights in the courtroom

SBM post natural bean dip

What’s in a name? Will sugar by any other name taste as sweet? Well, yes, but calling sugar “evaporated cane juice” in an ingredient list may get food manufacturers into trouble. Consumers in several class action suits allege that companies are trying to disguise the amount of sugar in their products by calling it something else.

Robin Reese filed a class action suit against Odwalla, a subsidiary of Coca-Cola, saying use of the term “evaporated cane juice” instead of sugar fooled her into thinking she was getting a healthier product when she purchased Odwalla juice. Odwalla told the judge the suit should be dismissed because it’s up to the FDA to decide the issue. The FDA issued draft guidelines, in 2009, taking the position that the term “evaporated cane juice” should not be used because it’s not a “juice” as defined in the Federal Regulations. For unknown reasons, no final guidelines were issued and food companies seem to be honoring the draft guidance more in the breach. The FDA reopened the draft guidelines for comment in March of this year, for 3 months, but still hasn’t decided. Meanwhile, similar class actions against other companies were dismissed or stayed pending the FDA’s making up its mind.

So what’s the difference, if any, between the two? Sugar company Florida Crystals told NPR the two are not the same and that evaporated cane juice is a “natural sweetener with ‘dark golden hues’ and a ‘sweet sugarcane flavor.’” Competitor U.S. Sugar begged to differ. Its rep said they are basically the same thing: “white sugar is stripped of all traces of molasses, while evaporated cane juice still has some little flecks of molasses that give it a darker caramel color.” According to this rep, from a health standpoint, there’s no real difference.

While Odwalla and other food companies may be trying to run from the word “sugar,” makers of high fructose corn syrup should be so lucky. The Corn Refiners Association asked the FDA to allow use of the term “corn sugar” instead of “high fructose corn syrup,” which, in some circles, is the equivalent of saying “poison” on the label. The FDA said no.

It’s only natural. Or not.

“Evaporated cane juice” is small potatoes compared to the food fights over “natural” ingredients. The biggest problem here is that no one really knows what” natural” means, even though it is ubiquitous in food product labeling and advertising.

The whole issue aggravates synthetic biologist Terry Johnson:

“Natural” is a word that has been used in so many contexts with so many different meanings that it’s become almost impossible to parse. Its most basic usage, to distinguish phenomena that exist only because of humankind from phenomena that don’t, presumes that humans are somehow separate from nature, and our works are un- or non-natural when compared to, say, beavers or honeybees.

When speaking of food, “natural” is even slipperier. It has different meanings in different countries, and in the US, the FDA has given up on a meaningful definition of natural food (largely in favor of “organic”, another nebulous term). In Canada, I could market corn as “natural” if I avoid adding or subtracting various things before selling it, but the corn itself is the result of thousands of years of selection by humans, from a plant that wouldn’t exist without human intervention.

Johnson’s comment is part of a terrific list titled “Ten Scientific Ideas that Scientists Wish You Would Stop Misusing” (including “quantum” and “gene”) which, in my opinion, which should be required reading for everyone.

sbm post natural tortilla chipsIn the last few years, dozens of class action lawsuits have been filed alleging food and other consumer products are labeled “natural” when, according to the plaintiffs, they contain synthetic ingredients. Many consumers believe that “natural” equates with “healthier” so they seek out and purchase products alleged to be made partly or wholly from natural ingredients. Mintel, a market research firm, did a consumer survey reported in a publication called Natural Foods Merchandiser. 60% of consumers read nutrition labels regularly and 51% look for “all natural” on the product label. One suit (over tortilla chips) cited a survey by Consumers Union which found that 86% of consumers understand the term “natural” to mean that the product doesn’t have any artificial ingredients in it.

My source for information on these lawsuits (including the “evaporated cane juice” cases) is a website called “Top Class Actions.” Motto:

Connecting Consumers to Settlements, Lawsuits and Attorneys

For example, here’s a “top class action” from July 11th, titled “Flushmate Toilet Class Action Settlement.”

The manufacturer of the Flushmate toilet flushing system has agreed to pay $18 million to resolve multiple class action lawsuits accusing the company selling a defective product that causes toilets to explode. If you own or owned a toilet equipped with a Series 503 Flushmate III Pressure-Assist Flushing System, you may be eligible to claim money from the class action settlement.

Of course, this suit has absolutely nothing to do with natural products, except in the broadest sense, but I couldn’t resist. To get to the suits we’re discussing in this post enter “natural” in the Top Class Actions search box.

WARNING: This website is not for use by drug and device manufacturers, consumer products manufacturers, financial institutions, publicly traded companies, large employers, or any other persons likely to have issues with the plaintiffs’ bar. Viewing this website may cause a dangerous spike in blood pressure, insomnia, depression, gastrointestinal upset, apoplexy and other symptoms of extreme aggravation.

The “natural” American meal: pizza, soda and cupcakes

My sympathies don’t lie with either side in this fight. One the one hand, it is simplistic to believe that “natural” and “healthier” are synonymous. On the other hand, companies shouldn’t be allowed to get away with false advertising. But is it false? After all, what does “natural” even mean? That’s a question we’ll return to in a minute.

And I have to wonder whether some of the consumers who file these suits are all that concerned about healthier eating. Take a look at the type of products they allege are mislabeled:

  • Waffles
  • Shakes
  • Cookies
  • Crackers
  • Snack bars
  • Enchiladas
  • Pizzas
  • Sodas
  • Ice cream
  • Cinnamon rolls
  • Buttermilk biscuits
  • Cheese
  • Pretzels
  • Chips
  • Bean dip
  • Baking mix
  • Pie
  • Cupcakes

Other consumer products have also been sued in class actions over the “natural” claim as well, including toothpaste, baby wash, sunscreen, shampoo, conditioner, shaving gel, diapers and deodorant.

Products containing GMOs are the subject of several lawsuits, including one against Heinz, alleging its distilled white vinegar is made from GMO corn, which is not really natural. Other suits allege that products containing Vitamin B12, Vitamin D2, niacin, iron, riboflavin, folic acid and ascorbic acid should not be labeled “natural.” Go figure.

The financial reward in these suits is not great, at least not for the members of the plaintiff class. While the total amount of the settlement can range from several hundred thousand to several million dollars, costs and attorneys’ fees must come out of that amount. To recover, individual consumers must file a claim with the court and generally receive only a few cents to a couple of dollars per product purchase, with a limit on the total reward, depending on whether the claimant has a proof of purchase or not. (Who saves grocery receipts in anticipation of a possible consumer lawsuit?) To add insult to injury, a claim will sometimes be rewarded with a voucher for more of the defendant’s products. If the settlement fund is not sufficient to pay all claims, each claim can be reduced pro rata.

For example, in a class action over claims of “natural” ingredients involving several dozen Kashi products, class members will get $0.50 per product, but those without proof of purchase will be capped at $25 total. The total settlement fund is $5 million. (As in all such settlements, Kashi denies plaintiffs’ claims.)

Attorney’s fees can sometimes eat up a substantial chunk of the settlement fund. In a recent class action against the maker of Nutella, plaintiffs claimed the product was misleadingly advertised as a “healthy breakfast food.” The case was settled with an agreement to alter Nutella’s label and advertising as well as a settlement fund of $1.5 million. About two thirds of that went to the attorneys. Three class members challenged the fee amount, arguing that such awards were generally limited to 25%, but a federal appeals court refused to overturn the lower court’s approval of the settlement.

Common sense

Not all plaintiffs have been successful.

An Alabama federal district judge tossed out a class action suit against Citrus World, Inc., makers of Florida Natural orange juice. The plaintiff’s complaint alleged that the juice was mislabeled as pure and natural when, in fact, it is “heavily processed, stored and flavored” before it is put on store shelves. In effect, the judge told the plaintiff to use a little common sense in the grocery store.

The plaintiff makes much ado about believing the packaged containers of orange juice contained ‘fresh squeezed’ orange juice. As a matter of common sense, whatever is in a container on a store shelf with an expiration date some weeks hence cannot contain ‘fresh’ anything. . . The fact that the plaintiff may have believed defendant hired individuals to hand squeeze fresh oranges one by one into juice cartons, then boxed up and delivered the same all over the country does not translate into a concrete injury to plaintiff upon his learning that beliefs about commercially grown and produced orange juice were incorrect.

Class action lawsuits have also been filed alleging orange juice made by Coca-Cola, under the name “Simply Orange,” and Tropicana, is not actually 100% juice nor is it natural. Plaintiffs claim that these companies use “flavor packs” to add back flavor and fragrance that is lost in processing.

So, what is “natural” anyway? That’s a question the plaintiff in a lawsuit against Nestle USA, Inc., couldn’t answer.

The complaint alleged the plaintiff bought Buitoni’s Three Cheese Tortellini and Spinach Cheese Tortellini believing that “all natural” meant they didn’t contain any unnatural, artificial or synthetic ingredients, when, in fact, they contain certain ingredients that aren’t “natural:” xanthan gum, soy lecithin, sodium citrate, maltodextrin, sodium phosphate, disodium phosphates, and ferrous sulfate. She would not have bought them had she known this, according to the complaint. The judge didn’t buy it.

The question before the court (on a motion to dismiss for failure to state a claim) was whether a reasonable consumer would likely to be deceived by the “all natural” claim. The plaintiff’s problem was that she could not provide an objective definition of just what “all natural” means. Basically, if you don’t know how to define it, you can’t say you were deceived by thinking a product failed to live up to the definition of “all natural.” This failure was not for lack of trying.

First, she tried the dictionary definition of “natural:” “produced or existing in nature” and “not artificial or manufactured.” The judge rejected this attempt, saying that consumers are obviously aware that Buitoni pastas aren’t “springing fully-formed from Ravioli tress and Tortellini bushes.”

So she tried again. This time, she argued that none of the ingredients in “natural” products can be “artificial” as that term is defined by the FDA. But the FDA’s definition applies only to flavor additives, not any of the ingredients plaintiff alleged were “unnatural.”

Finally, the plaintiff argued that none of the ingredients in a “natural” product are “synthetic” as defined by the National Organic Program (NOP). Two problems with that argument. First, the pastas weren’t labeled organic, so the NOP didn’t apply. Second, the ingredients plaintiff claimed were “synthetic” are actually permitted in products labelled “organic.”

The judge found, as a matter of law, that the description “all natural” was not deceptive because the actual ingredients were clearly disclosed on the label, quoting from another case where the plaintiff claimed “all natural” was misleading:

Because the labels clearly disclosed the presence of the [allegedly unnatural ingredients] it is not plausible that Plaintiffs believed, based on Defendant’s ‘[o]nly natural ingredients’ or ‘all natural’ representations, that the [product] did not contain [the challenged ingredients]

In other words, read the ingredients list on the label. That’s what it’s there for.

Posted in: Genetically modified organisms (GMOs), Health Fraud, Legal, Nutrition

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