A recent decision from the Ninth Circuit has highlighted the uncertainty that exists in the food product market about the use and definition of “All Natural” in labeling and advertising. In Brazil v. Dole Packaged Foods, LLC, 2016 U.S. App. LEXIS 17733 (9th Cir. Sept. 30, 2016), the Ninth Circuit held that District Judge Lucy H. Koh erred in granting Dole’s summary judgment motion on claims arising from the purported deceptive labeling of Dole’s fruit products.
Chad Brazil challenged the “All Natural” descriptions on certain Dole fruit products. Brazil brought claims against Dole under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act, alleging that the Dole labels are deceptive because they describe Dole’s packaged fruit as “All Natural” even though the products contain synthetic citric and ascorbic acid. Mr. Brazil maintained he would prove at trial that the labeling was misleading by citing the label itself, his own testimony that he was deceived, Dole’s own consumer surveys, and the Federal Food and Drug Administration’s informal, non-binding policy statements on use of the word “natural” in food labels.
As a matter of background, in 1993, the FDA informally defined “Natural” to mean that, “nothing artificial or synthetic…has been included in, or has been added to, a food that would not normally be expected to be in the food.” Brazil cited to this informal policy as well as recent FDA warning letters to food sellers. Those sellers had described their products as “100% Natural” or “All Natural” and the FDA called those descriptions deceptive because the products in question included synthetic citric acid.
In reversing the grant of Dole’s summary judgment motion, the Ninth Circuit explained that, to prevail on his claims, Brazil must show that Dole’s labels would probably have misled “a significant portion of the general consuming public or of targeted consumers acting reasonably in their circumstances.” Lavie vs. Proctor & Gamble Co., 129 Cal. Rptr. 2d 486, 495 (Cal. Ct. App. 2003). The court found that Brazil had amassed enough evidence, including the conflicting testimony of expert witnesses and Dole employees, to allow the trier of fact to conclude that the synthetic citric and ascorbic acids in Dole’s products were not “natural.”
While the Ninth Circuit’s decision is not particularly surprising, it highlights the uncertainty that will remain until the FDA issues its long-awaited directive on how the term “natural” should be defined and used in food labels. Since 2014, the FDA has asked the public to join a public commenting discussion on how that term should be defined and used in food labels. That public commenting period closed in May of 2016, and the FDA still is reviewing the 7600 comments it received from consumers, experts, and food companies. Notably, even judges have encouraged the FDA to issue its final directive, and many observers agree that the FDA’s decision on the meaning and best use of the term “All Natural” will provide clarity for all concerned.
Yet, the question of whether “All Natural” ever will be universally accepted by participants in the food market as an accurate product description may never be resolved. For example, some take the position that genetically modified food products cannot be accurately described as “all natural.” However, the sweet potato was genetically modified 8,000 years ago (through the insertion by bacteria of genes into the ancestor of the modern sweet potato). Similarly, Ruby Red grapefruits were derived less than 100 years ago from seeds that had been treated with irradiation. In short, the line between humanly modified foods and “all natural” foods is not so clear, and this ambiguity likely will survive any FDA directive.
Still, the Dole decision highlights the need for the FDA to issue its long-awaited policy statement on the use and definition of “all natural.”
In its opinion, the Ninth Circuit also: (1) affirmed the dismissal of Brazil’s claims for the sale of “illegal products,” explaining that because Brazil did not see the allegedly offending statements before he purchased the fruit, those statements could not have influenced his purchase; and (2) affirmed the district court’s grant of Dole’s motion to decertify the class because Brazil failed to show how damages could be calculated with proof common to the class.