"Natural" foods: inherently confusing.

• Author: Weaver, Allyson

1. INTRODUCTION II. BACKGROUND: RULES AND REGULATIONS GOVERNING FOOD LABELING A. The Rise of "Natural " in the Food Industry B. The History of Governing Federal Laws and the FDA's Authority C. The USDA's Meat and Poultry "Natural" Standards III. ANALYSIS: HOW AGENCIES, CORPORATIONS, AND COURTS APPROACH THE "NATURAL" PROBLEM A. The FDA's Approach to "Natural" B. The USDA's Approach to "Natural" C. Food Corporations' Approaches to "Natural" D. The Hormel Court's Approach to "Natural" E. The Judiciary's Approach to "Natural" IV. RECOMMENDATION A. "Natural" Should Mean "Natural" B. "Natural" is a Privilege, Not a Right V. CONCLUSION I. INTRODUCTION

   Tortilla chips, orange juice, soda, and ice cream: not only are they some of America's most popular, satisfying, calorie-laden foods, but these packaged products have another thing in common: a "natural" label. (1) Tortilla chips do not simply grow out of the ground or sprout from tree branches, so what exactly is a "natural" tortilla chip? Does the label mean the tortilla chips are made from fresh, locally grown ingredients? Does it mean that the chips do not contain any artificial ingredients or flavorings? Or, does it mean that the tortilla chips do not contain any processed or genetically modified ingredients? No matter the specifics, the label must mean that the tortilla chips are healthy, right? Many consumers are asking similar questions; unfortunately, it is currently impossible to find definitive answers.

   This Note explores the use of "natural" in the food industry and the problems surrounding the term. Part II of this Note examines the rules and regulations that govern food labeling in the United States and the agencies that oversee "natural" labels. Part III explores the varying approaches that entities use to define the term "natural." The FDA and USDA have not followed the necessary administrative procedures to issue a final rule regarding "natural," which has led to numerous class action lawsuits against corporations that use the term. Courts face the challenge of identifying the appropriate uses of "natural" labels, which in turn has created inconsistencies among states. These inconsistencies burden courts and corporations that use the undefined term. Part III also examines a recent case, Hormel Foods Corp. v. USDA, which illustrates the uncertainties and complications surrounding corporations' uses of "natural" labels.

   Part IV argues that the USDA and FDA must take final agency action to define "natural." The agencies should define "natural" narrowly, in accordance with the regular, everyday meaning of the word. Defining the term in accordance with the common understanding of "natural" will reduce consumer confusion and increase the reliability of the claimed natural qualities of "natural" products. Part IV explores what a narrow meaning will mean for corporations that want to use the "natural" label and the incentives it will produce that ultimately benefit consumers.

2. BACKGROUND: RULES AND REGULATIONS GOVERNING FOOD LABELING

   Multiple laws and regulations govern food labeling in the United States: the Federal Food, Drug, and Cosmetic Act, (2) the Nutrition and Labeling Education Act, (3) and the Federal Meat Inspection Act. (4) Additionally, multiple agencies oversee the nation's food production and food labeling. The Food and Drug Administration (FDA) is responsible for "[protecting the public health by assuring that foods ... are safe, wholesome, sanitary and properly labeled." (5) The Food Safety and Inspection Service (FSIS) is an agency within the United States Department of Agriculture (USDA) that is "responsible for ensuring that the nation's commercial supply of meat, poultry, and egg products is safe, wholesome, and correctly labeled and packaged." (6) The FDA and USDA are agencies with delegated power to issue rules regarding the appropriate use of "natural" labels. (7)

   1. The Rise of "Natural " in the Food Industry

      The term "natural" is the most frequently used assertion on new U.S. food products; products donning this label constituted nearly $22 billion of food industry sales in 2008. (8) A stroll down the aisles of a grocery store makes evident the breadth of the "natural" food trend. Products such as granola bars, cereals, fruit juices, and packaged meat products all display the valuable "natural" label. (9) Many corporations believe that "natural" labels on food products appeal to health-conscious consumers who seek to avoid ingestion of highly processed foods with chemical preservatives and artificial ingredients or flavorings. (10) A recent poll reinforces corporations' belief that "natural" is appealing to consumers, showing that 63% of consumers prefer products that have a "natural" label. (11) This may be because 86% of the consumers polled expect that a "natural" label means that the processed food does not contain any artificial ingredients. (12) Other studies show that consumers believe that the term "natural" communicates certain characteristics about the product: specifically, that "natural" products are pure, clean, and healthy. (13) Many consumers, however, remain unaware that the term "natural" is currently unregulated and undefined in the food industry. (14)

   2. The History of Governing Federal Laws and the FDA's Authority

      Food safety and consumer protection have been core functions of the United States government for over 100 years. (15) The government adopted such responsibility in 1906, when it enacted the Pure Food and Drugs Act (PFDA). (16) The PFDA established early labeling standards for food producers and prohibited false or misleading statements about food products in commerce. (17) Today, the Federal Food, Drug, and Cosmetic Act (FDCA) is the statute that governs most food labeling in the United States. (18) Congress adopted the FDCA in 1938 to recodify the PFDA, and the Act supplies the FDA with "the power to promulgate food definitions and standards of food quality." (19) The FDCA prohibits "[t]he introduction or delivery for introduction into interstate commerce of any food ... that is adulterated or misbranded." (20) Under the FDCA, a misbranded food is one that contains a false or misleading label. (21)

      Under the original FDCA, only about 60% of food labels in the U.S. disclosed nutritional information. (22) In an effort to rectify this problem, Congress passed the Nutrition and Labeling Education Act (NLEA) (23) in 1990, which gave the FDA more regulatory power to require disclosure of nutritional information. (24) The NLEA established national uniform standards for product labeling and the disclosure of nutrient contents. (25) Reforms included requiring nutritional labeling on nearly all food products, changing the requirements for ingredient labels on packages, and regulating health claims on packages. (26) The NLEA had three objectives in adopting the label revisions: "(1) To clear up consumer confusion about food labels, (2) To aid consumers in making healthy food choices, and (3) To encourage product innovation so that manufacturers are given an incentive to improve the quality of the food and make more healthy food choices available to consumers." (27) Through the uniform requirements, the NLEA also intended to provide a uniform understanding of terms commonly used to characterize food products. (28) The NLEA requires the FDA to set comprehensive standards for terms such as "low fat," "low cholesterol," "light," and "healthy." (29)

      Although the FDA has power to set standards and definitions regarding terms that describe food products, the FDA has not exercised its rulemaking authority to define the term "natural." (30) The FDA has only considered the definition of "natural" in its informal policy. (31) Under the Agency's definition, a product is "natural" if "nothing artificial or synthetic (including colors regardless of source) is included in, or has been added to, the product that would not normally be expected to be there." (32) This informal policy definition does not carry the weight of law.

   3. The USDA's Meat and Poultry "Natural " Standards

      Besides the NLEA, Congress has passed additional acts and delegated authority to other agencies in order to promote consumers' health and welfare. Congress passed the Federal Meat Inspection Act (FMIA) in 1906, which requires the inspection of meat and meat products to prevent and eliminate burdens upon commerce, to effectively regulate such commerce, and to protect the health and welfare of consumers. (33) FMIA--similar to the FDCA--forbids selling or transporting any adulterated or misbranded meat or meat products in commerce. (34)

      Likewise, the Poultry Products Inspection Act (PPIA) requires the inspection of poultry and poultry products and the processing and distribution of such articles. (35) Like FMIA, PPIA prohibits adulterated or misbranded poultry products from being transported in commerce. (36) Both FMIA and PPIA consider meat or poultry products "misbranded" if the products contain false or misleading labeling, contain any chemical preservatives (unless the label provides such information), or fail to bear the inspection legend or other information required by the Secretary of Agriculture. (37)

      The Food Safety and Inspection Service (FSIS) implemented the meat and poultry statutory provisions through a series of regulations to give FMIA and PPIA full effect in the food industry. (38) FSIS is "the public health agency in the [USDA] responsible for ensuring that the nation's commercial supply of meat, poultry, and egg products is safe, wholesome, and correctly labeled and packaged." (39) In 1982, FSIS issued an internal policy guidance that set forth standards for which meat and poultry products could be labeled "natural" without being false and misleading, and thus without violating the FMIA's or PPIA's misbranding provisions. (40)

      The FSIS Food Standards and Labeling Book designated two requirements for "natural" products: "(1) the...