A class action filed in California this month challenges the
"100% Natural" claim on Celestial Seasonings' teas on
the basis of testing alleged to have revealed the presence of
various pesticides and other toxic elements in the product.
However, the case, Von Slomski v. Hain Celestial Group,
Inc., 8:2013-CV-01757 (C.D.Cal.), appears to rest on a number
of questionable assertions.
First, while the complaint alleges that these elements are present
at excessive levels in violation of various food safety
regulations, it also alleges that their mere presence –
presumably at any level – renders the product "not
natural" such that the "100% Natural" claim is false
and misleading. The FDA has famously avoided defining what
constitutes "natural," but its informal guidance has
suggested that a "natural" claim is appropriate only when
"nothing artificial or synthetic...has been included in, or
has been added to, a food that would not normally be expected to be
in the food." 58 FR 2302, 2407 (January 6, 1993). This begs
the question: does the consuming public expect a "100%
Natural" product to have been produced entirely without the
aid of pesticides or insecticides? If not, is there not some
nominal level of residue that could be present without rendering
the product not natural? Plaintiffs make no allegations on consumer
expectations.
Second, the complaint seems to be invoking USDA regulations that
require products that make "organic" claims to have been
produced without the use of various synthetic substances such as
fertilizers and insecticides. However, those regulations do not
concern the product's final composition, but only the manner in
which the ingredients were produced. Moreover, Hain Celestial
does not make any "organic" claims.
Third, the complaint raises the question of what part of a product
must be "100% Natural" to substantiate that claim. In
addition to the testing it claims revealed these toxic elements in
the dry tea, it also refers to alternative testing done by another
laboratory (allegedly affiliated with Hain Celestial) that showed
that there were no trace elements of any of these elements in
the brewed tea itself. It thus could be that both tests were
correct: the tea leaves themselves contain these elements, but the
tea itself – the only part of the product the consumer
consumes – does not. Which test is more "consumer
relevant?" If the consumed portion of the product is all
natural, but the packaging or other means of delivery is not, is
the 100% Natural claim false?
Class action plaintiffs' attorneys have proven themselves
endlessly creative in finding new ways to exploit the uncertainty
of what is considered a "natural" food or beverage.
Advertisers must remain focused on the central question of consumer
relevance: what do consumers expect to be in this particular
product if it is "all natural"? Product testing, consumer
surveys, and substantiation remain an advertiser's best
defenses even as the method of attack continues to shift.
Barry M. Benjamin and John C. Knapp are advertising and
intellectual property attorneys in Kilpatrick Townsend &
Stockton's New York office. They have represented and advised
clients in the food and beverage industry in connection with
natural, organic, nutritious, and similar claims.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
