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Beware of “Natural”
Just a heads-up.
Due to the decisions of several US judges, who have determined that there is no effective difference between the term “100% Natural” and the term “Natural”, class-action lawyers are either suing or preparing to sue a number of companies in the US. Any and every company that has the word “natural” as either part of their product name or as part of their product description is vulnerable. If you think you are making a natural product, and you have even 0.001% of a synthetic material in it, these lawyers may sue you for defrauding your customers.
At the moment, being certified to a natural standard seems to be a protection. Adhering to an established standard, but not being certified, is NOT a protection.
I have no reason to think that this insanity will not spread, and I believe (but have no proof) that some companies have already settled, just to make these suits go away.
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15 Replies
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Definitely something to watch and stay on top of.
I believe that we will still see numerous violations. Too many wrongfully endorse the term “natural” as an inviolable term that even when not defined they defend with “you know what I mean.”
I will have to watch the ruling on certification since I have numerous clients who have followed a standard but not achieved the certification.
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What have the judges defined as natural? Isn’t everything “natural” since there is no such thing as “supernatural”?
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Next thing we will need “Natural” packaging as well with only biodegradable materials. No don’t laugh I can see it coming.
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It’s a slippery slope, and there haven’t been any final decisions yet, just decisions allowing lawsuits to proceed over the objections of the people being sued. The objections about the vague definitions of “natural” and the lack of a single “natural” standard have, so far, not made any impact on the judges.
There have been a number of lawsuits in the past that nailed companies for claiming “100% Natural” when there were some completely synthetic petro-chemical derived raw materials in them. Many companies in the natural products industry have made sure since then to only call their products “natural”, having received advice that having products that were 98-99% natural or naturally-derived were OK.
“Natural” seems to be used interchangeably with “botanical” or “plant-derived” in the documents I’ve seen.
Now, the current lawsuits are claiming that using the word “natural” on your packaging creates the identical impression to a consumer as using the term “100% Natural” does, and is therefore fraud. It will take years of legal wrangling before this is decided.
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Mark,
If you’re certified, you are apparently getting a pass on using the synthetic ingredients allowed by the certifying organization, probably because a lawsuit would also have to take on the certifier, and by extension, everyone who’s been certified.
If you are just following the standard, but not certified, you stand alone, and you’re a target. Saying “but the NPA allows these synthetic ingredients” does not protect you at all.
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Interesting and pertinent article here.
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@Bobzchemist I also think that when you are “compliant” (which I endorse only as a compromise, mainly so I can get past the “is this allowed” conundrum) you are likely to cut some corners with documentation. Much of the protection in certification is the higher documentation and QA standards but ultimately the third party protections and validation one gains under the certifying body. In a lawsuit, much rests on impressions and the level to which you reasonably apply your due diligence.
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The FDA has an ongoing comment period on the definition of the term “Natural” … Hopefully, a clear definition will emerge in the near future. I’ve seen labels claiming the product included Ethylhexylglycerin from “natural sources” which is clearly a misrepresentation. If the ingredient is not directly derived from plant extracts, or is chemically modified post-extraction, it is not “natural” by the commonly understood definition.
Note that the companies that have been called on the carpet on this have products that clearly included synthetic ingredients.
Agree, the only real protection you have is to get the product certified by the NPA or one of the established certification bodies.
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I didn’t make my self clear enough. From what I’ve gathered so far, no suits, preliminary discovery, etc. will even be started against companies that are certified, because the certification makes this a losing cause right from the beginning.
Companies that are compliant, but not certified, are vulnerable to these lawsuit preliminaries, because many of them are being filed in the hopes that there will be quick settlements for very little outlay. It’s cheap for the plaintiff’s lawyers to proceed even if there’s not a settlement, so they’ll keep moving forward in the hopes of shaking loose some easy settlements eventually.
Once the lawsuits pass through the preliminary stages, (costing many thousands in legal fees to the defendants anyway) and actually get to trial, being “compliant” with the standard will probably (but may not) save a company from getting a judgement against it.
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Well, the other issue that factors into this is intent. If a company follows a certification guideline … say, NPA, using only NPA or EcoCert certified ingredients, you run very little risk of being caught up in a situation like this as you can establish clear intent to use only natural products.
Now, if you knowingly include synthetic ingredients and still claim 100% Natural or All Natural, there is clear intent to make the claim knowing that was not the case. From the article that Mark posted, the companies had to have known that they included synthetic ingredients in their formulation, yet still advertised as 100% Natural or All Natural.
The other issue is using an ingredient like Benzyl Alcohol, which can be either synthetic or from natural sources. The people filing these lawsuits only know that you have Benzyl Alcohol on your LOI, they don’t have any way of knowing whether it is natural source or synthetic.
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I saw this coming for a number of years and it’s one of the major reasons I retired from active innovation work (apart from my antiquity).
I could never get my head round this obsessive notion in the populace that “natural is good” and “natural is safe”. The most dangerous and toxic materials in existence are totally natural. Man-made “nasties” are feeble in comparison.
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I have so many mixed feelings right now.
On one hand, great, I’m very tired of seeing brands claiming to be natural when they’re not, or being perfectly content with their customers believing they are natural when they’re not.
On the other hand, this will only encourage fear in consumers, which is how ideas like natural is best came about to begin with. Furthermore, stuff like this is catnip for politicians looking to regulate the industry until nobody but the biggest players are left.
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Actually, in a way this is a good development. Companies that are currently selling greenwashed products are going to have to consider the implications of false advertising and the possibility of class action lawsuits. Perhaps a consensus or legal definition of Natural will be developed which will bring clarity to the issue.
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@MarkBroussard
Mark,If you are comfortable defending yourself in a lawsuit and/or paying (potentially large) legal fees, you can follow the natural guidelines from one of the certifying organizations and not bother with getting certified. You will have protection AFTER the lawsuit goes to court, but none beforehand. Intent means nothing to the people suing. To them, suing a company is very much like buying a lottery ticket. To a small extent, I’m getting information from both sides, and there are definitely plans to sue a great number of companies, both large and small.
If you are certified, the chances are much lower that you will even begin to be sued.
While on the one hand, this does eliminate “greenwashing”, it also means that if the people suing prevail, things will be very black or white in the natural products industry. The definition these guys are pushing for is that any product that has the words “nature” or “natural” on it anywhere will have to be 100% natural. There will be no such thing as “98% natural” or “contains natural ingredients”. The presence of any quantity of any synthetic material, even if it’s added by a raw material supplier and you don’t know about it, will get you sued. Costs for the companies that remain in business are going to go up.
This will also become what’s called a “slippery slope”. Since there’s no real definition of “natural”, the next target for these lawyers is probably going to be companies using “natural” raw materials that are chemically combined. And it won’t end there.
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Bob, you make the case perfectly for why there needs to be a legal definition of the term “Natural” so companies and formulators have clear guidelines to follow with a legal definition that one can rely on.
In most of the cases I have seen, the companies clearly included what they should have know was a synthetic ingredient … most seem to involve dimethicone.
I think the FTC will end up taking the lead on this issue as the lawsuits are centered on false/deceptive advertising.
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