It’s getting scary out there for those marketing natural products. “A lot of companies are being sued right now,” said Loren Israelsen, executive director of the United Natural Products Alliance at an Expo West session. But they can arm themselves with knowledge. That was the takeaway from “GMOs and ‘Natural’ Claims Litigation: Five Ways to Protect Your Company.”
Israelsen, along with Justin Prochnow, shareholder at Greenberg Traurig, LLP, walked attendees through a history of how we came to this point, where terms like “natural,” “non-GMO” and “organic” present a minefield of potential legal headaches for companies.
One pivotal moment was the U.S. Food and Drug Administration’s decision not to differentiate genetically modified food from regular food and not require GMOs to be mentioned on food labels. New data, they said, suggest that natural consumers now view “non-GMO” as a more meaningful and important claim than certified organic.
Some lawsuits are preying on this situation, as companies are getting sued over claims they haven’t proven like “non-GMO” or ill-defined claims like “all-natural” that are costly to defend in court. Prochnow explained that these two areas are also overlapping. “We’ve moved into a space over the last year or so with ‘all-natural’ lawsuits over GMO ingredients,” he said. Since common sense dictates that genetically modified food is not natural, lawyers have gone after products claiming to be natural by simply alleging that they contain GMO ingredients. GMO varieties have become hard to avoid for many crops, such as corn or soy.
But the pair suggested that companies can lessen their risk by carefully reviewing their labels for potential pitfalls. Unqualified claims like “all-natural” are big targets, so they suggest that marketers qualify these claims. They also advise companies rotate their labeling and advertising messages regularly. This practice leaves it less clear which consumers were supposed to have been wronged by a product’s claim, making it hard for courts to certify a class in a class action lawsuit, and therefore stopping lawsuits in their tracks. If sued, Israelsen and Prochnow told companies not to stick their heads in the sand, but to hire experienced council.
Published in WholeFoods Magazine, May 2014