“100% Natural” claim challenged on products that contain GM ingredient. (subscription to Law360 required)

• As the food industry is well aware, lawsuits challenging “natural” claims continue to proliferate nationwide, with particularly significant activity occurring in the Northern District of California (dubbed “The Food Court”).  Many challenges have focused on the presence or use of synthetic ingredients or processing aids in products positioned as “all-natural” or “100% natural.”
• More recently, we have seen a trend toward “natural” challenges that focus on the presence of genetically modified (GM) constituents in food products.  In a lawsuit filed on June 8, 2015, a plaintiff has challenged Campbell Soup Co.’s “100% Natural” claim on Prego brand pasta sauces, citing the presence of GM canola oil in the products.  The challenge is premised on the allegation that reasonable consumers would not expect the presence of GM ingredients in a product positioned as wholly natural.  Considering that most (if not all) modern crops are “GM” based on the use of historical preferential breeding techniques, there is at least a reasonable argument that the use of GM technology does not render crops per se synthetic or artificial.
• This is not the first GM-based “natural” challenge, nor is it likely to be the last.  The potential liability involved in such cases can be significant, as indicated by Kashi’s recently finalized $4 million settlement to end a class action lawsuit over the presence of GM components in its cereals and snack bars.  FDA has no official policy governing the use of “natural” claims, nor does the Agency appear likely to develop a definition in the foreseeable future.  In the meantime, the food industry’s actions in the “natural” claim space will likely continue to be shaped — and curtailed — by plaintiffs’ lawyers.