Recognizing that “certifying agents have interpreted the requirements for calculating the percent of organic ingredients differently,” the USDA recently published its draft guidance “Calculating the Percentage of Organic Ingredients in Multi-Ingredient Products (NOP 5037).”  This draft guidance seeks to clarify section 205.302 of the organic regulations, which has apparently been inconsistently applied by certifiers.

Some things to note from a first read of the draft guidance:

  • The draft guidance clarifies that, in the case of a multi-ingredient product, a “100% organic” final product is only possible if ALL of the multi-ingredient ingredients (I guess you can call them “sub ingredients”) are confirmed to be 100% organic.
  • Keep in mind that:  AN ORGANIC LABELING CATEGORY IS NOT THE SAME AS PERCENTAGE OF ORGANIC INGREDIENTS (except, of course, in the “100% organic” labeling category) and the “Organic” labeling category is only guaranteed as 95% organic content.
  • So, when determining percentage of organic of product to be certified, you must account for exact organic content in each multi-ingredient ingredient used in the final product.
  • If you cannot account for the exact organic content, you must default to the 95% or 70% labeling category for multi-ingredient ingredients.

Continue Reading Open for Comment: Draft Guidance on Organic Product Calculations

A three-judge panel returned mixed-news on Friday, September 30, for sellers of food labeled as “natural.” A putative class action lawsuit against Dole Packaged Foods for deceptively labeling their fruit containing synthetic citric and ascorbic acid as “All Natural Fruit” had been dismissed in favor of Dole on summary judgment by the United States District Court for the Northern District of California. The District Court had also decertified the class action.

On appeal, a panel of the Ninth Circuit determined that a jury could find that a reasonable consumer would see Dole’s description as misleading. This was based on the plaintiff’s testimony that he was deceived; an informal policy of the FDA defining “natural” to mean nothing artificial or synthetic had been included; and FDA warning letters previously sent to various food sellers for describing food as “natural” while containing synthetic citric acid. Accordingly, the panel found it was error for the District Court to grant summary judgment to Dole.

However, the panel affirmed the District Court’s decertification of the class action. The correct measure of damages in this circumstance would be the “price premium” of the labels, that is, the additional price paid in misunderstanding the fruit to contain no artificial or synthetic ingredients. Yet, the plaintiff presented no evidence as to how this premium could be calculated with proof in common to a class of consumers. Presumably, individualized evidence would have to be presented to demonstrate how much reliance a consumer placed on the “natural” labeling, and what this description would be worth to them. The plaintiff’s individual claim may proceed, but only pursuit of injunctive relief would be allowed on behalf of a class of consumers.

This reversal by a Federal Circuit Court adds to the pileup of differing views in the “all natural” labeling space, which is sure to continue until the FDA and USDA provide certainty.

On June 22, 2016, the Organic Consumers Association (“OCA”) filed suit against Post Foods LLC and Post Holdings (“Post”) in Washington, D.C. The complaint seeks injunctive relief and economic damages.  At the center of OCA’s allegations are Post’s claims that its Shredded Wheat products are “100% Natural Whole Grain Wheat” and a “Natural Source of Fiber” in advertisements and product labels.

Such claims, according to OCA’s complaint, are deceptive and misleading because the Shredded Wheat products contain glyphosate, which is an herbicide.  OCA alleges that “Post is attempting to capture the growing market of consumers who are aware of the health risks and environmental damage caused by chemical-laden foods . . . Post knows that consumers demand—and are willing to pay for –foods that are natural and whole, and that omit chemicals.”

This case now joins the new and increasingly complex natural claims cases in which the “unnatural” chemical at issue is found in the product at a level significantly below the Environmental Protection Agency’s legally permitted threshold.  Here, the glyphosate level is 0.18 parts per million, while the EPA’s threshold is 30 parts per million.  OCA’s argument, however, is that reasonable consumers would not expect such a chemical to be present at any level in products that make “100% natural claims.”  Still, it remains up to the court to determine whether such a level of glyphosate is significant for these purposes.

On August 12, 2016, Post filed a notice of removal to remove the action to federal court in the District of Columbia.  Natural claims litigation is continuing to grow, and all developments in cases like this, which involve well-known products, have the potential impact the food advertising and labeling world.  Stay tuned.

One of the most common questions we get asked is “How can I use the organic seal to market my certified-organic products without running afoul of the organic regulations?”  Until today, that question didn’t have a clear-cut answer, but thanks to a new Fact Sheet published by the USDA, we now have more informed answers for our clients on this front.

In a nutshell, like so many things in this arena, any marketing materials should be submitted to the operation’s accredited certifying agency for review and approval.  In addition, the Fact Sheet reiterates the touchstone inquiry for operations and certifiers:  Is the seal is being “used to misrepresent nonorganically produced products as organic.”  If you can’t answer that question with a no, you may be in violation of the regulations.

While we’d like to see even more guidance in this area, this is a good start and hopefully a sign of more to come!


oatsQuaker Oats has become the newest target in the wave of class action litigation against food manufacturers.   A lawsuit currently seeking class certification has been filed on behalf of consumers in New York and California for the company’s claim that its oatmeal is 100% natural.

According to the allegations of the complaint, an independent lab in California tested Quaker’s Quick 1-Minute oatmeal and found glyphosate, a common pesticide, in the product.  Because of the glyphosate, the lawsuit alleges that Quaker’s 100% natural claim is false and misleading.  The test was performed only on the Quick 1-Minute product, but the suit also includes claims relating to Old-Fashioned Oats and Steel Cut Oats.

Quaker Oats responded in a statement that it does not add glyphosate to the grains during the milling process but that farmers may use it on certain grains before harvest.  It further stated it cleanses the oats it receives.  Significantly, the testing revealed glyphosate at a level of 1.18 parts per million in the product, which is about 4 percent of the level the EPA permits in cereal grains.

The plaintiffs’ lawyers, who funded the testing, argued that “[t]he issue is that Quaker advertises these products as 100 percent natural, and glyphosate in any amount is not natural.”

The suit asks for refunds for consumers who have purchased the products and that Quaker either disclose the glyphosate content or remove it.

This approach marks a shift in consumer class action litigation, as plaintiffs’ counsel are now testing products in preparation for litigation.  No doubt such testing will continue to expand, to other pesticides and substances, but certainly to other products.  Time will tell whether the federal district courts adjudicating the lawsuit will find the EPA regulations compelling, but the unique issues in this case are sure to harvest much interest as the litigation unfolds.

all natural large.jpg.560x0_q80_crop-smartIn Kane v. Chobani, LLC, No. 14-15670, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit vacated the trial court’s dismissal of a lawsuit alleging that Chobani deceptively and unlawfully used the terms “natural” and “evaporated cane juice” to describe its yogurt.  The class action lawsuit, filed in 2012 on behalf of people who purchased Chobani Greek yogurt, alleged that the products labeled as “all natural” actually contained artificial ingredients, artificial colors, and contained added sugar under the guise of “evaporated cane juice.”

The U.S. District Court for the Northern District of California dismissed the plaintiffs’ case in February 2014, explaining that the plaintiffs had not set forth sufficient factual allegations to recover against Chobani for using the allegedly misleading food labels.[1]  Observing that the U.S. Food and Drug Administration (“FDA”) had indicated its intent to issue guidance on the terms “natural” and “evaporated cane juice,” the Ninth Circuit reversed course and vacated the dismissal.  However, the Ninth Circuit remanded with an instruction that the case be stayed indefinitely, explaining that the labeled terms “implicate[] technical and policy questions” that were better decided by the FDA than the judicial system.  By resurrecting the plaintiffs’ claims while awaiting FDA guidance, the Ninth Circuit re-opened the door for consumers to bring expensive, open-ended, and uncertain lawsuits against companies that use allegedly “misleading” words.  These types of suits will continue to proliferate, with varying results, unless and until the FDA issues the guidance the courts are seeking.  Here’s hoping that happens…sooner rather than later.

[1] Kane v. Chobani, Inc., 973 F. Supp. 2d 1120 (N.D. Cal. 2014).

Tlawsuithis is Part II in our series on Food Labeling litigation.  Part I gave general context to food labeling and advertising litigation and discussed some general trends with these claims, focusing on consumer claims such as false advertising, consumer protection, and unfair trade practices.  To review:  consumers bring class actions that allege, through some legal claim, the use of a labeling term misleads consumers.  Remember the term “selling words” that we explained in Part I?  This part summarizes the most hotly contested kinds of selling words and gives examples of class actions brought by consumers against the companies who used them.  The selling words that are the biggest targets of this kind of litigation: (1) “Natural” and “all natural”; (2) “Healthy” claims; and (3) Food mislabeling claims about ingredient quality (like “100% pure”).  Let’s jump in! Continue Reading “Selling Words” and Food Labels: the New Tobacco Litigation, Part II

FOOD BASICS© 1998 PhotoSpinwww.powerphotos.comMy colleagues on the Alcohol and  Beverage team posted today on Husch Blackwell’s Food & Agribusiness blog regarding new regulations that will impact craft brewers.  Because of the overlap of issues we’ve previously blogged about, I thought it was of equal interest to this blog’s readers.  Enjoy!

By:  James Mathis and Jonathan Allen

New regulations from the Food and Drug Administration (FDA) regarding nutritional information labeling are generating concern within the beer industry that the cost of compliance might be damaging and cost prohibitive for the industry.

Effective December 1, 2016, the FDA will require disclosure of nutritional information for regular menu items, including alcohol beverages, appearing on menus for larger restaurant and brew pub chains.

The Affordable Care Act (ACA) amended the Federal Food, Drug, and Cosmetic Act (FDCA) to require disclosure of caloric counts for standard menu items at restaurant and brew pub chains with 20 or more locations nationwide.  Craft brewers have expressed concern that the cost of the nutritional testing could make it difficult to compete with larger brewers, particularly with respect to seasonal or smaller batch beers.  Originally set to go in effect in 2015, the FDA extended the time to comply with the regulation from December 1, 2015 to December 1, 2016, in large part to accommodate the concerns of the craft beer industry.  (For more on the extension, see our previous post here.)

The beer industry could elect to fight the FDA’s regulatory power to weigh in on matters traditionally left to the Alcohol and Tobacco Tax and Trade Bureau (TTB).  The FDA has authority over labeling of all “food,” which by definition includes certain alcoholic beverages.  Since the end of prohibition, however, the TTB and its predecessor agencies have generally exercised authority to regulate all things alcohol, including product labeling, to the exclusion of the FDA’s jurisdiction.

The two agencies’ regulatory authority over alcohol beverages has been contested often.  While the FDA and TTB have fought about their regulatory overlap at times, they have also worked together (for example, on “gluten-free” labeling issues).  Even in the era of cooperation, however, the FDA’s proposed labeling regulations may spark another dispute between the agencies, and provide leverage that the craft beer industry could use to fight the regulation.

The Husch Blackwell Alcohol and Beverage team will continue to monitor these and other regulatory issues and can assist with all compliance-related issues.

Salmon_FishThe federal government’s omnibus spending bill which was unveiled on December 15th, includes language that requires the FDA to finalize guidelines for the labeling of genetically modified salmon. The bill also “prohibits the agency from introducing any food that contains genetically engineered salmon until it publishes its final labeling guidelines,” as reported by Lydia Wheeler in an article which appeared in The Hill. The restriction appears to be a response to a decision by the FDA last month to approve a genetically modified brand of salmon that has been engineered to grow to market size faster than its farm-raised counterparts.

Congress is expected to vote on the bill this Friday. Read more here.

all natural large.jpg.560x0_q80_crop-smart

There is a Calvin and Hobbes cartoon where Calvin’s dad is at the grocery store trying to decide which type of potato chips to buy between “original,” “lite,” “less fat,” “less salt” and various combinations of the terms. The punch line is “Frankly, my life was plenty complicated before the potato chips.”

Food labels are in some ways now more complicated than ever. Walking down a grocery store aisle, you will see “all natural,” “antibiotic free,” “healthy” and a myriad of other terms that characterize the food being marketed. Let’s call these little additions “selling words.” What are selling words? They are words that are put on a package because somebody decided consumers will be more likely to buy the product if they see the selling words.

The people who come up with selling words are smart. They do studies and look at data. They spend a lot of time figuring out what drives consumer decision making. I’m a consumer. When I go to the grocery store, I am more likely to buy products that say things like “all natural,” “healthy,” and “no artificial flavors.” But, selling words are tricky from a legal perspective.  Many of these kinds of claims on food labels and packaging are neither expressly mandated nor prohibited by the current federal food labeling regulatory scheme, and sometimes consumers (or at least attorneys) disagree on whether the selling words match up with the actual content of the food. As a result, the use of selling words on product packaging has become a target of litigation.

This article is Part I of a two-part series of blog posts addressing litigation surrounding food labeling and advertising.  This part provides broad context for this kind of litigation, first by explaining the food labeling regulatory scheme and general food labeling litigation trends.  Part I also discusses the primary categories of plaintiffs and the legal means they use to bring these actions.  Part II of this series (coming soon) addresses consumer class action suits in greater detail, giving specific examples of the selling words that generate the most legal controversy. Continue Reading “Selling Words” and Food Labels: the New Tobacco Litigation