A leading poultry producer has been sued over “natural” claims on its chicken products.  (subscription to Law360 required)

• Americans’ increasing appetite for clean label, ethically-raised foods has resulted in the continued proliferation of consumer advocacy litigation targeting “natural” claims for products containing synthetic ingredients or preservatives.  Adding fuel to the continued uptick in “natural” litigation is the fact that neither the U.S. Food and Drug Administration (FDA)  nor the U.S. Department of Agriculture (USDA) formally define the term “natural.” As previously covered on this blog, the FDA is considering whether to regulate the term “natural”.  USDA’s Food Safety & Inspection Service (FSIS), on the other hand – which regulates meat and poultry products – currently has in place an informal policy on “natural” which permits USDA-regulated products to be labeled “natural” when the product does not contain any artificial flavor or flavoring, coloring ingredient, chemical preservative (as defined in 21 C.F.R. 101.22), or any other artificial or synthetic ingredient; the policy also provides that the product and its ingredients cannot be more than minimally processed.  USDA-regulated products bearing “natural” claims must be specifically approved by FSIS before entering commerce.
• Against this regulatory backdrop, on June 22, 2017, three consumer advocacy groups – the Organic Consumers Association, Friends of the Earth and Center for Food Safety – filed a complaint against Sanderson Farms Inc., the third largest poultry producer in the United States, accusing the company of falsely advertising its chicken as “100 percent natural” and misleading consumers about how the birds are raised by concealing the presence of antibiotics and other drugs in its chickens.  In particular, the complaint – filed in the U.S. District Court for the Northern District of California – alleges that FSIS National Residue Program testing in 2015 and 2016 identified 49 instances in which samples of Sanderson Farms chicken products tested positive for residues of synthetic drugs, including antibiotics used in both humans and animals and other drugs including the anesthetic ketamine.  The complaint also alleges that FSIS testing revealed an additional 82 instances of unconfirmed residues including pesticides.
• In a statement released on June 23, 2017, Sanderson Farms denied the allegations, stating that it “does not administer the antibiotics, other chemicals and pesticides, or ‘other pharmaceuticals’ listed in the complaint to its flocks”.  The Company added, however, that its “veterinarians do, on rare occasions, prescribe penicillin to treat sick poultry flocks when in their professional judgement they consider it necessary for animal welfare” in line with FDA guidance.
• This latest lawsuit represents a recent trend in “natural” litigation targeting USDA-regulated products.  As our readership will recall, just last Fall, a class action lawsuit was filed against Hormel Foods Corp. alleging that Hormel includes synthetic ingredients and preservatives in deli meat labeled as “100% Natural” or “No Preservatives”.  Key defenses there included federal preemption and primary jurisdiction.  Assuming the Sanderson Farms products at issue do not run afoul of the current USDA policy on “natural” and the labels themselves were specifically approved by USDA, we would expect Sanderson Farms to avail itself of similar defenses. In addition, because USDA is working to update the definition of “natural”, Sanderson Farms could potentially request a stay on the proceedings pending the issuance of the forthcoming definition as has been successfully done in a number of recent “natural” cases concerning FDA-regulated products, see e.g., here and here (although the difference in this case is that USDA has not yet formally published a document for public comment).
• Given increasing consumer demand for “natural” products, and the corresponding increasing market share for such products, the ultimate disposition of the ongoing litigation will be of great interest to industry and consumers alike. We will be sure to keep a close eye on developments in this case and report them to you here.