Is Natural Really Natural? The Labeling of Food Products That Contain GMOs

The recent increased interest in the health food industry has brought with it much dialogue and debate over what is “natural,” “organic,” and/or “artificial.” But perhaps no term has resulted in more discussion than that of “Genetically Modified Organism,” or “GMO.” In the past few years, dozens of consumer class action lawsuits have been filed alleging that GMO-containing foods are being mislabeled as “Natural” or “All Natural.” However, the question of whether a food that contains a GMO or an ingredient derived from a GMO is, by definition, not natural, has not been decided on the merits.

A 2014 Consumer Reports Food Labeling Survey reported that a majority of consumers (59%) check to see if the food they purchase is labeled “natural.” Of those consumers, 66% interpreted the phrase to mean that no pesticides were used; 66% believed the phrase meant that no artificial ingredients were used; and 64% assumed the phrase meant that no GMOs were used. Even more so, 85% of those consumers thought that the “natural” label on packaged/processed foods should mean that no GMOs were used.

Significantly, the Food and Drug Administration (FDA) has declined to adopt a formal definition for the term “natural,” claiming it has received too many different proposed definitions. It has, however, adopted an informal policy as to what “natural” means, stating that a food can be labeled as “natural” if “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.” However, this policy does not address genetically engineered foods (i.e. those foods that contain GMOs) in the context of labels claiming that a food is “natural.”

In fact, the FDA reaffirmed that a label need not identify that the food to which it is attached contains a GMO. In addition, it has warned that companies should not claim that non-GMO foods are superior to GMO foods, suggesting that such statements, whether expressly or impliedly made, could be misleading.

To date, more than 70 bills have been introduced in over 30 states to require the labeling of GMO-containing foods and/or to prohibit GMO-containing foods. California’s 2012 Proposition 37 ballot initiative, if passed, would have required the labeling of both raw and processed foods that contained a GMO and would have prohibited such foods from being labeled “natural.” However, that ballot initiative was defeated by a small margin: 51% to 49%. Vermont is the first state to require mandatory GMO labeling and prohibits manufacturers from packaging and/or advertising GMO-containing foods as “natural”. Connecticut and Maine have also passed mandatory labeling laws contingent on other nearby states passing similar laws.

In the meantime, dozens of lawsuits remain on the docket nationwide that involve claims of whether a food that contains a GMO is misleading when labeled as “natural.” Many courts have declined to dismiss or stay these lawsuits based on preemption and/or primary jurisdiction arguments, stating that even if the FDA elects to respond to their referrals, there is no telling how the FDA would define the term, or if the definition would actually shed any light on whether a reasonable consumer is deceived by the “natural” label when a GMO is involved.

So, what is the significance of these filed lawsuits so far? By denying the motions to dismiss, at the very least, courts have decided that reasonable consumers could be misled when GMO-containing foods are labeled as “natural.” However, the determination in court of whether such labeling has actually misled the consumer has not yet been made. Furthermore, courts have not found preemption or application of the primary jurisdiction doctrine even though the FDA has required no special labeling/disclosure of GMO foods. Even if eventually decided on the merits, what these lawsuits will not decide is whether a company will be required to disclose the presence of GMOs in the food it manufactures/distributes.

Even if not judicially or legislatively required, it is becoming increasingly clear to the health food industry that consumers want to know whether the food they consume contains GMOs. That is probably why at least one large health food store chain (Whole Foods) has announced that it will require GMO labeling by 2018 on all of the food it sells. Whether such disclosures will prevent food manufacturers/distributors from identifying foods as “natural” remains to be seen and could be the subject of future lawsuits.

Food manufacturers/distributors will need to decide whether the benefits of identifying a food as “natural” from a marketing perspective outweigh the risk of potential litigation.