Kraft seeks to end ‘all-natural’ sour cream labeling suit (subscription to Law360 required)

• Kraft Heinz Foods Co. (Kraft) asked the court (the U.S. District Court for the Eastern District of New York) to dismiss a putative class action over claims the “All Natural” label on its Breakstone’s sour cream is misleading because the sour cream is made with dairy ingredients from cows fed genetically modified organisms (GMOs), arguing the claims are preempted by the National Bioengineered Food Disclosure Standard of January 2016, which requires the U.S. Department of Agriculture to promulgate a regulation that shall “prohibit a food derived from an animal to be considered a bioengineered food solely because the animal consumed feed produced from, containing, or consisting of a bioengineered substance.”
• Kraft additionally referenced the dismissal of federal cases against Chipotle Mexican Grill’s use of “non-GMO” labeling for products derived from animals that ate GMO feed in arguing that a reasonable consumer is unlikely to believe the sour cream is not natural because the milk in the sour cream might have come from a cow that ate GMO feed, a contention that the plaintiff countered is a factual dispute that cannot be resolved in a motion to dismiss.
• Kraft also argued that the case should be dismissed because FDA is reviewing the use of the term “natural” on food products.  This argument proved successful in gaining a stay in March 2017 for Kraft’s ‘natural’ labeling case (As previously covered on this blog, FDA has requested comments on the definition of “natural” to determine whether or how the FDA should define the term going forward).
• Because there is no guarantee that FDA will ever define “natural” claims, it remains to be seen just how long trial courts may be willing to wait.