Naturally complicated

29 April 2019


This article originally appeared in Food in Canada and is republished with the permission of the publisher.

"Natural" claims on food labels continue to proliferate. Polls show that while Canadians want more natural foods, they continue to be confused by what the term means. It's not easy to explain its meaning to consumers but at least the CFIA, for many years, has provided some guidance to manufacturers to minimize its misuse.

A natural food or ingredient of a food is not expected to contain, or to ever have contained, an added vitamin, mineral nutrient, artificial flavouring agent or food additive. It also cannot have any constituent or fraction thereof removed or significantly changed, with the exception of the removal of water. A natural food or ingredient of a food is expected not to have been submitted to processes that have significantly altered its original physical, chemical or biological state. A table sets out processes considered by the CFIA to cause minimum changes to the food or food ingredient, and a second table describes processes considered to cause maximum change. Foods that are only subject to the former are more likely to be considered natural, those subjected to the latter less likely. The CFIA also accepts that if the food additives, vita- mins and mineral nutrients are derived from natural sources then they may still be natural ingredients and the acceptable claim would be that the food "contains natural ingredients".

In spite of this guidance, there is still a great deal of regulatory ambiguity. The processes that are listed in the tables are not defined and therefore subject to varying interpretations. It is not clear how far back you have to trace in the processing of an ingredient: if a maximum process were applied to an enzyme that was used to create an ingredient of an ingredient, would the "natural" claim be lost? We have had enforcement threats on this issue in the past.

As there has been no broad movement by food manufacturers or consumers in Canada to insist on greater clarity, we have assumed that there will be no changes to our situation anytime soon. The   assumption may be wrong. After years of dithering, our neighbors to the south may actually be close to announcing major changes, at least for those foods under the jurisdiction of FDA.

"If the FDA finally releases a broad prescriptive standard we will have to review hundreds of labels on exported and imported foods"

Current FDA guidance is very brief. It considers the term "natural" to mean that nothing artificial or synthetic has been added to a food that would not normally be expected in that food.

Complaints by industry and consumers prompted the FDA to try to provide a more comprehensive definition in 1988 and 1993 but it gave up both times. In more recent years hundreds of lawsuits have been brought against food companies claiming that they are misleading consumers by using the term "natural". This prompted the FDA to try again in 2015. By 2018, FDA had received 7600 comments, many insisting that it not be allowed on foods that had been irradiated or pasteurized, or foods that contained GMOs or high fructose corn syrup. Consumer Reports is leading a campaign to ban the use of the term in all food labelling.

Finally, FDA Commissioner Scott Gottlieb announced in March 2018 that FDA was "close to issuing standards". The FDA would probably prefer to avoid this controversial issue as in the past but the prospect of multiple and conflicting court decisions means that it must act soon. As food lawyer Gregory Cote has commented, "Adjudicating the meaning of "natural" on a case by-case and product- by-product basis in nearly 500 separate lawsuits is a costly and slow process and will almost assuredly produce discordant and subjective rulings that impose a patchwork of labeling standards and requirements by jurisdiction."

Canadian companies will have to keep a close eye on developments in the U.S. If the FDA finally releases a broad prescriptive standard we will have to review hundreds of labels on exported and imported foods. This could get very complicated.

Ronald L. Doering, BA, LL.B. MA, LL.D., is a past president of the Canadian Food Inspection Agency. He is counsel in the Ottawa offices of Gowling WLG, and adjunct professor, Food Science, Carleton University.

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