As we previously posted in “All natural: FDA silence continues to create problems for false advertising defendants”,  the Food and Drug Administration’s failure to provide a definition of what a “natural” ingredient is makes it difficult for companies defending against false advertising claims based on allegations that food products are marketed as “natural” when the product allegedly contains an artificial or synthetic product because there is no governing standard.

Although the FDA has not promulgated a formal definition, the FDA maintains a policy that “natural” in food products means “nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food.”

But, a recent decision from the Northern District of California in Brazil v. Dole Packaged Food, LLC may provide a framework for defendants to work within the FDA’s informal definition to defeat such claims.

In Brazil, the plaintiff alleged that Dole misrepresented certain packaged fruit products as “All Natural Fruit” when, in fact, the products contained two allegedly synthetic ingredients—citric acid and ascorbic acid. Following the court’s denial of the damages class, Dole moved for summary judgment arguing that the plaintiff had no evidence that the products are not natural and that plaintiff had no evidence that such ingredients are not “normally to be expected in the food.”  Dole further argued that the plaintiff had no evidence that the label was likely to deceive a reasonable consumer.

Granting Dole’s motion, the court held that although the named plaintiff testified he was misled by the label, such testimony is not enough, nor was the “additional ‘evidence’” offered by plaintiff.

The plaintiff “cite[d] the FDA’s informal definition of the term ‘natural’ as ‘evidence of how reasonable consumers would view the ‘All Natural Fruit’ label.”  But, “Brazil [ ] offered no evidence that citric acid and ascorbic acid, the two allegedly synthetic ingredients found in the challenged Dole products, ‘would not normally be expected to be in’ those products, as the FDA definition requires.” The court disregarded plaintiff’s conclusory response that “it goes without saying that man-made ingredients added to products would not normally be expected to be in food,” based on a lack of factual support.

Interestingly, the court did not actually address the issue of whether the particular products were in fact synthetic and instead focused on plaintiff’s lack of evidence that consumers would not expect such ingredients to normally be in food.

Historically, “all natural” cases have seen plaintiffs attempting to prove that synthetics were used in order to establish liability. However, based on this court’s interpretation, perhaps the mere presence of a synthetic ingredient or product will not doom the defense, leaving room to argue that if a consumer expects a synthetic (like a preservative) to be in a food, there cannot be deception.

This, of course, begs the question (which the court here did not resolve): what type of evidence can be presented to show what types of ingredients consumers normally expect in their food? The opinion does not give much guidance on this point, particularly given the court’s insistence that consumer surveys are not required to establish a likelihood of deception. If not a survey, what else?