Wednesday, December 12, 2012

Natural versus organic: which claim is easier to make?

Yesterday I listened in on an excellent program on “natural” claims provided by the Private Advertising Litigation subcommittee of the ABA’s Antitrust Committee, where consumer protection and advertising law lives for historical reasons (ask me sometime about what the name of the committee should be!).  And aside from thinking that everyone who does advertising law, plaintiff-side, defense-side, and in-house, could have learned a lot from that presentation, I was struck by how useful regulation can be to producers.  The FDA and the FTC, and even USDA, have been almost hands-off on the meaning of “natural,” and what that has meant is a lot of uncertainty and litigation.  Some producers are removing the term from their products (which might be the right result, but for the wrong reasons) while others are digging in, arguing that even if it confuses consumers courts should stay out because the FDA hasn’t regulated and it’s the one with expertise.  By contrast, “organic” is heavily regulated, and while one can easily dispute the details, disputes over its meaning are less likely to lead to litigation.  (This is also why there needs to be coordinate regulation of “organic” for non-food-based items.)  Consumers and producers can all benefit from having a defined meaning around which to orient claims.

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