January 16, 2014
Authored by: Brandon Neuschafer
GMOs have been in the news a lot recently, from General Mills’ announcement that Cheerios will be labeled GMO-free to apples that don’t rust. One important development that has received less attention is FDA’s decision to decline an invitation by several judges to define whether “natural” and “all natural” claims can be used with respect to products containing GMOs. The request came from three federal judges district court judges, two in California and one in New Jersey, whose dockets have pending lawsuits alleging consumer fraud by food manufacturers who market (or marketed) products containing GMOs as “natural.”
In its response to the judges, FDA stated that although it does have a policy on what “natural” means with respect to food (“nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food”), if FDA intended to change or amend its policy, it would do so through formal rulemaking as opposed to in the context of litigation between private parties. FDA noted the complexity of the issue, and that any action would require input from many other governmental agencies and stakeholders. FDA also indicated its focus continues to be on food-related public health and safety matters which it sees as higher priority.
One interesting aspect of FDA’s letter comes in a footnote addressing a recent letter from the Grocery Manufacturers Association (“GMA”) wherein GMA indicated that it would file a citizen petition in 2014 requesting FDA to “issue a regulation authorizing foods containing ingredients derived from biotechnology to be labeled ‘natural.'” In the footnote, FDA referenced the GMA letter and stated that if it were to decide this policy question, use of the administrative process in a manner such as that requested by GMA would “better serve” the public. This doesn’t answer the question of how FDA will respond to GMA’s petition, but it does provide a bit more clarity than was previously available about FDA’s thinking.
One thing is for certain – this issue is not going away any time soon, and any rulemaking promises to be highly political and emotional. Until that time, further guidance will have to come from judges fortunate enough to tackle “natural” food litigation.