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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