The "Natural" Aversion: The FDA's Reluctance to Define a Leading Food-Industry Marketing Claim, and the Pressing Need for a Workable Rule

May 2010

65 Food and Drug Law Journal, 403-424 (2010).

As of 2009, the “natural foods” industry has become a 22.3 billion dollar giant and “all-natural” is the second-leading marketing claim for all new food products. Even in such a flourishing market, the Food and Drug Administration (FDA) has never defined the term “natural” through rulemaking. FDA and the U.S. Department of Agriculture (USDA) have instead created separate, nonidentical policy statements governing the use of the term “natural,” and FDA has abandoned efforts to define “natural” through rulemaking in the face of more pressing priorities. In absence of any governing federal standard, consumer advocacy groups and warring food industries have attempted to defi ne “natural” to fit their preferences through high-stakes litigation of state law claims, leaving courts free to apply diverging standards without the expertise of FDA. Recent case law from federal district courts and the Supreme Court leaves little hope that FDA’s current policy statement will preempt state law causes of action. To prevent a potential patchwork of definitions varying by state, and to create a legitimate standard resting on informed scientific expertise rather than consumer whims, FDA should engage in rulemaking to defi ne the term “natural.” This
paper concludes by sketching potential formulations for such a rule based on FDA’s previous successful rule-making ventures and standards used by natural foods retailers.


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