No preemption of "All Natural" claim based on vitamin regs

Larsen v. Trader Joe's Co., 2013 WL 132442 (N.D.Cal.)

This putative class action was based on Trader Joe’s sale of “All Natural” and “100% Natural” products that allegedly contained one or more synthetic and/or nonnatural ingredients as defined by the FDA.  Trader Joe's moved for judgment on the pleadings with respect to claims related to its Fresh Pressed Apple Juice, labeled “All Natural Pasteurized” and “100% Juice.”  The label lists two ingredients, “APPLE JUICE, ASCORBIC ACID (VITAMIN C).”  Ascorbic acid is a modified form of vitamin C used in foods as a preservative.  It’s produced from corn or wheat starch, which is converted to glucose, then to sorbitol, through a series of chemical processes and purification steps.  Trader Joe’s argued that the juice-related claims were preempted by the FDCA and its implementing regulations.

In essence, Trader Joe’s argued that the plaintiffs were seeking to impose labeling requirements that would imply that naturally occurring vitamin C is better than synthetic vitamin C.  Plaintiffs responded that they weren’t seeking additional labeling, but rather to have Trader Joe’s refrain from labeling its juice as “All Natural” when it actually contains synthetic vitamin C—ascorbic acid.  They argued that, though the claims were material to them because they believed that natural products were better than synthetic ones, the validity of their claims didn’t depend on the superiority of naturally occurring vitamins, and that they weren’t asking retailers to label naturally occurring vitamin C as superior.  Trader Joe’s rejoined that barring them from using “All Natural” would imply that ascorbic acid was inferior: “In other words, the lack of a label implies inferiority, and therefore violates federal regulations which treat ascorbic acid and naturally occurring vitamin C as synonyms. Trader Joe's goes so far as to argue that federal law requires that it label ascorbic acid as ‘All Natural.’”

As you can guess from the tone, the court disagreed.  California’s ban on false or misleading labeling was identical to the FDCA/FDA requirements.  The court found Trader Joe’s logic strained and its regulatory citations cherry-picking.  Federal regulations indeed provide that ascorbic acid and vitamin C may be used synonymously on food labels.  But that doesn’t require the court to adopt Trader Joe’s view that labels can never make any distinction between these synonyms.  Trader Joe’s argued that labels distinguishing between natural and added or synthetic vitamins would inherently be misbranded, and that, as long as the naturally occurring vitamins could be labeled “All Natural,” then “federal law not only permits, but indeed requires, manufacturers to label products with [synthetic] vitamins in an identical manner.”

The federal regulations as a whole don’t support that view.  The regulations were, indeed, explicitly amended to remove the prohibition on differentiating between naturally-occurring and synthetic vitamins.  While the regulation does prohibit label statements that naturally occurring vitamins are superior to synthetic vitamins, it allows labels to “‘differentiate between the different forms of a vitamin,’ particularly as between naturally occurring and synthetic.”  Both the premise (no distinctions in labeling) and the conclusion (“All Natural” was required because naturally occurring vitamin C could be labeled “All Natural”) were flawed. 

The court noted that some differences may matter to consumers even if they are not matters of physical/chemical identity: “Simply because the two products are chemically similar or even identical, it does not follow that they must be labeled identically in all respects. As the FDA recognized in removing the strict prohibition on differentiating, there is some value to consumers and the market of knowing whether ingredients are synthetic or naturally occurring.”  The plaintiffs’ complaint didn’t depend on the actual inferiority of synthetic ingredients.  “At most, plaintiffs allege that consumers affirmatively choose ‘All Natural’ products for a host of reasons, including helping the environment, assisting local farmers, and perceived health benefits.”  Moreover, they weren’t demanding an active “synthetic” or “non-natural” label; rather they challenged the use of “All Natural.”  This wouldn’t require Trader Joe’s to imply anything positive or negative about ascorbic acid.  “To be sure, the ability to describe as ‘All Natural’ may have market consequences. But the absence of a label is quite different from the addition of positive or negative language, which the regulations plainly prohibit.”