So, let’s say I was making you dinner, and in preparing one of the ingredients was “fixed to a column by the use of a synthetic fixing agent, glutaraldehyde.”  Even if I told you that I washed off all the “unreacted glutaraldehyde,” would you be willing to call the dinner I made you “natural?”  

If you wouldn’t, don’t eat with the decision makers from the FDA.   In a letter to the Corn Refiners Association in July 2003, FDA “Product Evaluation and Labeling Team” Supervisor Geraldine June told manufacturers of high-fructose corn syrup that product in that manner could be labeled as “natural.”  Interestingly, although the term “natural” is affixed to a great many products on the shelves in grocery stores today, it is not precisely defined outside of the context of food coloring and flavoring.  In a preamble to a rule making in the Federal Register, the FDA describes natural as meaning “nothing artificial or synthetic has been added to a food that would not normally be expected to be in the food.”  (58 Fed. Reg. 2302, 2407).

Not everyone agrees with the FDA that high fructose corn syrup fits this definition.   In 2007, a class action lawsuit on behalf of consumers was filed in Federal District Court in New Jersey against the beverage manufacturer Snapple.   The suit alleged that the claim the beverage was “all natural,” as indicated on packaging was misleading.  Snapple based its defense on the legal doctrine of preemption.  (Snapple now produces its product without high fructose corn syrup.)

Preemption is a legal doctrine based in Article VI, Section 2 of the U.S. Constitution that holds that federal law is the supreme law of the land.  Under the doctrine, state laws deemed to be in conflict with federal regulation cannot be upheld.   The class action complaint by the consumers was based on fraud, defined by state law in New Jersey.  Thus, if U.S. law regarding labeling rules was deemed to be in conflict with New Jersey laws on fraud, the U.S. law would negate or preempt an action based upon the state law.

There are generally two types of preemption.  The first is express preemption, which is found where a federal law explicitly states that any state regulation on a subject is intended to preempt any existing state laws.   More common is implied preemption, where a litigant argues that preemption of state law is implied in the federal regulatory scheme.  There are, in turn, two types of implied pre-emption–conflict preemption and field preemption.  The term conflict preemption is used where the federal and state law are perceived to be at odds.  In such a case, of course, the federal law trumps.  In field preemption, the federal government is found to have so pervasively regulated an area as to preempt any state regulation in the area.

Snapple defended the fraud claims, arguing all three types of preemption.   Largely though, the argument focused on implied preemption, based on the FDA’s 2003 letter allowing the “natural” claim.  As such, a state law ruling to the contrary would be in conflict with the federal regulation, and thus preempted.  

The District Court agreed, finding that the FDA letter constituted a formal definition of the word natural, and then also finding that FDA regulated the area so fully as to trigger “field” preemption of state claims.   

The plaintiff class members appealed to the Third Circuit.  There, the judges reversed the District Court’s ruling.   See, Holk v. Snapple, 575 F. 3d 329 (3rd Cir. 2009).  The Appeals Court rejected the claim of field preemption, finding that the FDA was aware of and allowed state regulation in the area.  The Court also rejected the idea of conflict preemption.   In doing so, it held that the letter from the FDA did not rise to the level of an official federal regulation, and that only such an official regulation could hold the power to preempt state law.  With those holdings, the case has been remanded to the District Court for further proceedings.

In the meantime, a similar suit was filed in California in August of this year.   Without clear guidance from the FDA as to the meaning of the term “natural” on food labels, such litigation is likely to continue.   Food industry marketers clearly place some value on being able to make such a claim on their product.  The question is, how much does that claim signify to consumers?