Glenn Pogust Discusses Lack of FDA Guidance on the Labeling of “Natural” Foods in Corporate Counsel

Corporate Counsel reports that Kellogg Co. subsidiary Kashi Co. must pay $5 million to settle a consumer class action claiming that the use of the words “all natural” and “nothing artificial” on certain Kashi products qualified as false advertising, as those products contained ingredients that did not fit those descriptions. The case highlights the lack of any official guidance from the Food and Drug Administration (FDA) as to how the word “natural” can be used on food and beverage labels.

According to Kaye Scholer Special Counsel Glenn Pogust, “The FDA really has done nothing to try and define what natural is,” adding that the agency doesn’t seem to be in any hurry to clarify and regulate the proper use of the term. While in some circumstances regulations are not welcomed with open arms, Pogust said that “the lack of direction from the FDA may actually be making it harder for food companies to decide how to label and market their goods.” He continued, “By taking a backseat, the FDA has left manufacturers to fend for themselves in the court system, which is not going to give them much uniformity or certainty in terms of how their products are going to be seen in the context of the consumer protection statutes.”

Pogust also pointed out that the use of “all natural” on a label requires the examination not just of the food’s ingredients but all of the processes used to make it, adding that “even food that people wouldn’t normally perceive as heavily processed can still be a target for plaintiffs claiming that it’s unnatural if it’s made with certain fertilizers or cleaned and sanitized in certain ways.” He noted, “What you need to do is you have to dig deeper than what your ingredients are, you have to look at how those ingredients are being turned into a food product.”