By Ilana Morady
A class action lawsuit filed this month in the Central District of California claims that Frito-Lay has engaged in misleading advertising, unfair competition, and breach of express warranty by marketing Tostitos and SunChips as made with “all natural” ingredients. The heart of the lawsuit centers on the claim that the popular snack foods are not made of “all natural” ingredients because the corn and vegetable oils used to make them are made from genetically modified plants and organisms (GMOs).
The World Health Organization (WHO) defines GMOs as “organisms in which the genetic material (DNA) has been altered in a way that does not occur naturally.” In the case of Tostitos and SunChips, the corn and vegetable oil are grown from plants seeds that are engineered to allow for greater yield and pesticide resistance. A reasonable consumer, plaintiff alleges, assumes that seeds that have been created by “swapping genetic material across species to exhibit traits that are not naturally theirs” are not “all natural.” Therefore, the plaintiff class claims it suffered damages when it did not actually get “all natural” Tostitos and SunChips at the grocery store as advertised.
The lawsuit, which alleges that Frito-Lay, maker of Tostitos and SunChips, violated federal and California false advertising and unfair competition laws, is not the first of its kind. Lawsuits like this one have recently been on the rise. Consumer advocacy class actions have been trying to fight what they see as the food industry exploiting confusion over the meaning of “natural.”
Although a food product must meet strict government guidelines to be marketed as “organic,” the same is not true for marketing a product as “natural.” The Food and Drug Administration (FDA) has not developed a definition for “natural.” The Agency does not object to manufacturers using the term if a food does not contain added color, artificial flavors, or synthetic substances. This FDA guidance, however, offers little on the use of bioengineered ingredients. On the other hand, to be labeled “organic,” food must be free from bioengineering.
While the regulatory meaning of “natural” and “organic” are very different, advertising research indicates that consumers are confused about the difference. Consumer advocacy groups argue that this confusion could lead to consumers reasonably believing that a “natural” food product is not made from GMOs. Although the FDA has received numerous petitions in the past few years to define “natural,” the Agency has said that the term will remain undefined. Therefore, the agencies responsible for enforcing regulations pertaining to health-related food claims (FTC, FDA and USDA) are not likely to bring enforcement actions against marketers of “all natural” products containing GMOs. However, due to the rise of consumer class actions, food companies should still assess the risk of using “natural” claims, especially for foods with bioengineered ingredients.