100% ALL NATURAL AMBIGUITY: A COMPARATIVE APPROACH TO FOOD LABELING REQUIREMENTS FOR THE TERM 'NATURAL' BY THE FOOD AND DRUG ADMINISTRATION AND THE EUROPEAN UNION.

• Author: Maehara, Andrea

In his best-selling book, In Defense of Food: An Eater's Manifesto, (1) Michael Pollan invites the reader to embrace the eating habits of our grandparents. In a criticism of complicated and difficult-to-interpret food labels, Pollan argues, "Imagine your grandmother or your great-grandmother picking up this tube, holding it up to the light... and then imagine her reading the ingredients. Yogurt is a very simple food. It's milk inoculated with a bacterial culture. But Go-Gurt has dozens of ingredients." (2) Consider the nutritional list of Go-Gurt, (3) Orville Redenbacher's Popcorn, (4) Del Monte Fruit Naturals, (5) Alexia Sweet Potatoes Fries, (6) and Kraft Natural Cheese (7) for a moment. All five of these food products share one common label on their packaging: "natural." Across the market, "natural" is one of the most popular terms used on product labeling for food products and beyond. (8) Americans spend over $40 billion dollars on "natural" food products each year, making it clear that consumer demand for "natural" foods is strong. (9)

But what does "natural" mean? No one is quite sure. (10) "Natural" seems to evoke health and wellness, an image that American consumers clearly respond well to. (11) And yet, both consumers and manufacturers are puzzled as to what "natural" really means, because the Food and Drug Administration has not formally defined the term "natural" despite having the power to establish definitions for food product labeling. (12) In the absence of a formal definition for the term or its derivatives, (13) consumers have turned to class action lawsuits against corporations such as Arizona Beverages (14) and Nature Valley (15) for misleading consumers through deceptive labels. (16)

Food labeling requirements function as a critical guide between the consumer and the producer. They mandate guidelines for when producers may use a certain term on their products, protect the consumer from misleading claims, and ultimately empower consumers with accurate and appropriate labels to make informed choices when purchasing and consuming a product. However, these requirements must be clear and specific in order to accomplish these goals. A company needs to be able to understand the requirements, and a consumer needs to be able to trust that the claims on the products accurately reflect their content.

This Note will examine the term "natural" by comparing the different approaches to the food labeling requirements in the United States through the Food and Drug Administration ("FDA") (17) and in the European Union ("EU"). (18) First, it will examine the origins of each body and early shortcomings. Then it will outline the current state of the regulations and the general public response to labeling requirements and legislation.

From there, it will argue that the FDA's requirements are too generic to protect consumers and effectively guide producers on standards for their products. (19) The FDA should issue a final definition for "natural" and its derivatives (20) to standardize the term for consumers and manufacturers. The FDA's reluctance to fully define the term only halters further progress on consumer protection and public health. A functional and enforceable definition of "natural" would ensure that consumers have more knowledge of products and can make more informed decisions. Further, consumers could be more confident in their purchases and trust companies more that the labels on the products are accurate and appropriate based on FDA requirements. A final ruling on the definition would also serve to reduce the number of class action lawsuits that have stemmed from consumer and many food corporations' confusion surrounding labeling requirements for "natural."

This Note will examine two critical problems with the FDA's approach, especially compared to that of the EU and its member states: (1) mounting litigation without federal preemption that results in increasing class action lawsuits from frustrated consumers (21) and (2) growing distrust of both the FDA and American food manufacturers. (22) While this Note will refrain from offering a formal definition for the term "natural," it will explore crucial components of EU member states' approach to food product labeling and suggest key elements of European agencies' definitions for the FDA to consider when issuing a final rule.

1. FOOD LABELING REQUIREMENTS IN THE UNITED STATES THROUGH THE FDA

   1. Colonial Origins to the Pure Food and Drug Act of 1906

      Food labeling practices in the United States have existed in some form since colonial times (23) but became more common in the early twentieth century with the onset of greater production technology and transportation advances during the Industrial Revolution. (24) This change increased consumer access to products and pre-packaged foods and allowed for greater distribution of goods. (25) Out of necessity, producers began to mark their products as a way of identifying the product as their own and drawing a distinction between their goods with those of their competitors. (26)

      Absent legislation and regulation on food production, food manufacturers had free rein to include whatever they wanted in the goods without having to include any labeling information, creating an asymmetry of information. (27) While this posed many increasing public health concerns for consumers, food manufacturers enjoyed this privilege for several years without the federal government's intervention because states still controlled food-related issues until the beginning of the twentieth century. (28) Although large food manufacturers strongly resisted government interference and food laws, (29) a well-publicized series of reports and publications, known as the Shattuck Report, increased awareness of the health risks associated with adulterated foods, (30) propelling public health legislation throughout the end of the nineteenth century and beyond. (31)

      As a final push to persuade the United States government to pass these regulations, notable critics and muckrakers (32) such as Upton Sinclair in his 1906 book, The Jungle, (33) increased public awareness to common food producers' poor hygienic conditions and production methods. Several months after publication, The Jungle"'s graphic and horrific account of meatpacking conditions (34) pressured the federal government to finalize food production and mislabeling laws, resulting in the passage (35) of the Pure Food and Drug Act of 1906 (36) ("the Act") and the Meat Inspection Act. (37) While the Act only prevented mislabeling of products without requiring specific information about the content or ingredients, (38) it is known as one of the first American consumer protection laws that banned the inclusion of ingredients that would pose health risks to consumers. (39)

      Despite the ambiguous nature of the Act, courts declined to apply a test of "chemical, scientific, or technical accuracy" and instead broadly interpreted labels based on what an ordinary person would understand the label to mean, looking to the commonplace usage of the terms. (40) Early cases (41) emphasized that food producers could not include deleterious ingredients that may cause harm to consumers. (42) In the midst of the Act's passage, Congress also approved the Bureau of Chemistry, better known today as the FDA, to administer the Act and ensure its success. (43)

   2. The Passage of the Food, Drug, and Cosmetic Act

      However, after six amendments to the Act from 1906 to 1938 and a tragic mislabeling incident that resulted in the death of over one hundred consumers, including children, (44) President Roosevelt repealed the Pure Food and Drug Act and signed the Food, Drug, and Cosmetic Act ("FDCA") of 1938. (45) Congress intended to "promote honesty and fair dealing in the interests of consumers" by focusing on misrepresentation via labeling and packing, (46) which still left consumers unprotected from unchecked and unregulated health claims on labels. (47) Although bare-boned in its approach, Congress under 21 U.S. Code [section] 343(k) stipulated that "any artificial flavoring, artificial coloring, or chemical preservatives" were to be labeled on the product. (48) Following this trend in the mid-twentieth century, Congress later passed labeling requirements for specific products, such as poultry in 1957 (49) and a federal preemption statute on food labeling in 1966. (50)

      While Congress continued to pass public health legislation, the relationship between food labeling and consumer protection remained on the minds of the American public. President John F. Kennedy directly addressed this in a consumer protection focused speech (51) in 1964 where he famously noted the importance of "truth in packaging" and the need to focus more legislation on it in order to protect four basic consumer rights. (52) Following his address, President Kennedy (and later, President Johnson) created the Consumer Advisory Council and the President's Committee on Consumer Affairs, with Esther Peterson appointed as the Special Assistant. (53) As consumer protection and food labeling take on a larger role in legislation, critics of the FDCA have noted that it assumes that food products are affirmatively deemed safe and that "the statute holds producers responsible for the safety of their produce, but imposes no premarket inspection regime for foods it covers." (54)

   3. Defining "Natural"

      The movement to define "natural" first began with an effort by the Federal Trade Commission ("FTC") in the early 1970s, where the agency's proposed rule was to define natural food products as those "with no artificial ingredients and only minimal processing." (55) However, these efforts were abandoned in 1983 when the FTC decided to focus on advertising issues instead and abandoned the rule. (56)

      While the FDA and other agencies did not continue to pursue a final rule or expand the FTC's proposed definition, additional labeling issues arose from the ambiguous...