The U.S. Food and Drug Administration (“FDA”) announced the establishment of a docket to receive information and comments from the public on the use of the term “natural” in food labeling. The FDA’s action is in response to 3 citizen petitions asking that the FDA define the term “natural” and 1 citizen petition asking the FDA to prohibit use of the term on food labels, as well as requests by multiple Federal courts sought administrative determinations from FDA, in conjunction with litigation between private parties, regarding whether food products containing GMO ingredients or particular ingredients, e.g., high fructose corn syrup, may be labeled “natural.”
According to the notice, FDA is working with the U.S. Department of Agriculture (“USDA”) to also assess the term in regards to poultry, meat, and egg products. The notice provides a brief history of FDA’s position regarding use of the term “natural” and describes its “longstanding policy for the use of the term “natural” on the labels of human food” 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 (56 FR 60421 at 60466).” Further, in a preamble to a proposed rule published in 1991, FDA explained that they have not attempted to restrict use of the term “natural” except for added color, synthetic substances, and flavors. Of course, as you can imagine, and as one citizen petition pointed out, there is likely a “‘drastic’ difference between FDA’s current policy…and ‘what people think the ‘natural’ label should mean.”
Notably, the call for public input does not involve a discussion regarding what “natural” means on the labeling of cosmetic products. As readers of this blog know, cosmetic companies have had their “natural” claims challenged in litigation a number of times. Thus, it would seem the discussion should include a assessment applicable to the cosmetic industry as well. After all, if a standard is developed for food, you can bet plaintiffs’ attorneys will try to apply that standard without revision to cosmetics.
FDA asks for information and public comment on questions such as, among other information:
- Whether it is appropriate to define the term “natural,”
- If so, how the agency should define “natural,” and
- How the agency should determine appropriate use of the term on food labels.
- Should certain production practices used in agriculture, e.g., genetic engineering, mutagenesis, hybridization, the use of pesticides, or animal husbandry practices, be a factor in defining “natural”
- Type(s) of ingredients that would disqualify a food from bearing the term “natural
- Consumer association between “natural” with “healthy”
The FDA is accepting public comments beginning on November 12, 2015. To electronically submit comments to the docket, visit Regulations.gov and type FDA-2014-N-1207 in the search box. For more information see the Federal Register.
Cosmetics & The Law 
It will be interesting to see what their definition comes down to. It is by it’s very nature, fungible.
LikeLike