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If you work in the legal department of a company that sells food or beverages, then you have surely noticed the growing litigation surrounding the word 'natural' lately.
And if you haven't, (or even if you have -- but especially if you haven't), then you need to read on.
'Natural' Claims Litigation
We've seen Naked Juice settle false advertising claims for $9 million recently, for using the words "all natural," "100% juice," and "100% fruit" on the Naked Juice labels. And, last week two Kellogg companies -- Kashi and Bear Naked -- settled two separate class actions where they were accused of "falsely labeling their products as '100% All Natural,'" according to Top Class Actions.
That's just the tip of the iceberg.
According to some attorneys, in the past two years at least 100 lawsuits challenging the use of the word "natural" on labeling have been filed, reports The Wall Street Journal. These cases are often class actions and involve big settlements. Why not put up a fight? Because, the law is unclear.
Little Guidance from FDA
The FDA, by its own admission says "From a food science perspective, it is difficult to define a food product that is 'natural' because the food has probably been processed and is no longer the product of the earth." Notwithstanding, it admits to not having a bright line definition, but does try to give some guidance and states, "the agency has not objected to the use of the term if the food does not contain added color, artificial flavors, or synthetic substances." Though the Food Label Modernization Act of 2013 was introduced to Congress last year, by the looks of things, we won't have any clear guidance any time soon.
Just Settle It
So what is a company to do? Well, some companies are just settling these cases, rather than putting up a fight. Others who have not yet been sued are quietly dropping the term 'natural' from labels to avoid litigation, says The Wall Street Journal. What should your company do? Well, that depends. How much money do you have to waste on litigation? We're guessing not a lot.
The safe bet is to drop the term before your company gets sued, and if your company does get sued, it's safest to settle pending further guidance from Congress or the FDA. The problem is, are we setting the stage for next-generation patent trolls?
Are 'natural' trolls the next patent trolls? Let us know @FindLawLP on Twitter.