“Natural” Claims and Consumer Expectation

By Ricardo Carvajal –

According to an informal policy, FDA considers the use of the term “natural” in food labeling to mean that 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.  Cases dealing with this policy typically focus only on whether the food contains an artificial or synthetic substance, and do not address the italicized element.  So we couldn’t help but notice when a California district court delved into the issue in a recent opinion that keeps alive a class action against Dreyer’s Grand Ice Cream (“DGIC”).

In relevant part, the court refused to dismiss state law claims essentially alleging that Haagen-Dazs ice cream was falsely advertised as “All Natural Ice Cream” despite the fact that it contained cocoa alkalized with potassium carbonate, a substance alleged to be artificial or synthetic.  Among other things, DGIC argued that, “because potassium carbonate is commonly used as an alkanizing agent. . . nothing artificial or synthetic has been used in its ice cream.”  The court found this argument problematic:

[E]ven if potassium carbonate is commonly used, that does not necessarily imply normally expected; a reasonable consumer may not have the same knowledge as, e.g., a commercial manufacturer.

Thus, at least in this court’s eyes, the presence of an artificial or synthetic substance is compatible with a “natural” claim only if one can demonstrate that consumers normally expect the substance to be present.  Awareness of the presence of the substance among manufacturers is irrelevant.