As natural claims have become prevalent in pet food marketing, lawsuits have likewise proliferated. While people have argued about the division between humans and nature since antiquity, that argument plays out in courtrooms now.
“‘Natural’ is a vague and ambiguous term that has multiple inconsistent meanings amongst the buying population,” Michael Annis, partner with law firm Husch Blackwell, told Petfood Industry. “That is, it might mean something to you and can mean something totally different to me. Because of that vagary and lack of regulatory definition, ‘Natural’ is can be a difficult term to defend or substantiate by a brand electing to use the term as a descriptor for its products.”
Numerous lawsuits related to natural or similar marketing claims have challenged brands over the past decade. For example, natural pet food claims by Rachael Ray Nutrish came under fire in a class action lawsuit filed in 2017. In 2018, a dog owner in Wisconsin filed a lawsuit against Champion Petfoods alleging the presence of heavy metals in the company’s dog foods, contrary to marketing that the food was akin to a wild diet. In 2023, Nestle Purina was named in a class action lawsuit alleging that the company markets pet foods as natural, although the products contain synthetic ingredients.
This November, lawyers initiated a similar lawsuit against Mars Petcare. Filed in New York, the lawsuit alleges that Mars Petcare “markets its Products in a systematically misleading manner by misrepresenting that many of its products are ‘natural’…However, this representation is false and/or misleading because the Products contain multiple synthetic ingredients including but not limited to xanthan gum, thiamine mononitrate, zinc sulfate, copper sulfate, pyridoxine hydrochloride, and menadione sodium bisulfite complex.”
Unfortunately, similar lawsuits are likely to reappear, Annis said. He answered Petfood Industry’s questions about the Mars case and the legal landscape of natural pet food claims.
Q: Over the years, there have been numerous lawsuits over pet food brands’ “natural” claims. Why do these lawsuits recur?
A: Great question and perhaps several contributing factors. “Natural” is a term that has no regulatory definition. AAFCO has provided guidance for dog and cat food usage, but it is up to the various states to address whether and to what extent they support AAFCO’s guidance. The FDA has been asked several times over the last decade plus to define “natural.” It has refused to do so, although it has issued some “guidance” for human food.
Q: Wouldn’t a lawyer be able to use the precedent set by previous lawsuits to get the new ones thrown out?
A: Prior case decisions are a very important part of determining the legal merit of any lawsuit. “Natural” cases have, however, been all over the board regarding how they have been decided for multiple reasons.
One, it largely depends upon where the suit is pending and which judge is assigned to the matter. Just like you and me, each judge brings to the table their individual beliefs and opinions, but guided by precedent and statutory law. Some states (or Circuits on the federal level) have laws and case decisions more open to false adverting claims based on issues of terms like “natural” as a product descriptor.
Second, context is everything in a false advertising case. How was the subject term used, to describe what, and why does the complaining party believe that use is either literally false or misleading? Is it because known synthetically derived ingredients were used in the product’s manufacture? Is it because the manufacturer used an ingredient that, while existing in nature, was nonetheless synthetically manufactured? Was the product packaged by a substance that allegedly leached into the foodstuff and tainted it or rendered it adulterated and thus incapable of being “natural”? All these scenarios have been cited in prior litigation claiming false adverting in use of the term “natural” to market pet food products.
You also need to look to see whether the user of the term “natural” has scientific substantiation to back up how it is using the term. All of these may be treated one way in a first court, and another in a second court. These vagaries can make defense of the term difficult and highly factually dependent.
Most of the cases you are referring to were brought as class actions. Of those matters that make it out of the motion to dismiss phase, the vast majority settle for a wide variety of reasons – and do not form “precedent” that could be relied upon by later litigants. Lack of regulatory definition, varying understandings of the term, lack of real precedent all lead to the continued proliferation of ‘natural” laws suits.
Q: The current lawsuit, MERSADA COBOVIC vs. MARS PETCARE US, INC., involves vitamins, xanthan gum and other ingredients from synthetic sources. Are synthetic ingredients allowed in natural pet foods?
A: Certain synthetic ingredients are allowed in pet foods, so long as they are GRAS. It does not matter if there are no reasonable natural sources for the ingredient. The question is when can you legitimately use the term “natural” to market a pet food? It depends.
AAFCO’s definition of “natural” (paraphrased here) is an ingredient derived solely from plant, animal or mined sources and not having been produced by or subject to a chemical synthetic process. https://www.aafco.org/consumers/understanding-pet-food/natural/ The link has recommendations on use. But just because you feel you are compliant with AAFCO’s definition of “natural” does not mean you won’t get sued or ultimately found liable to a consumer for allegations of false advertising.
Many ingredients, including vitamins and minerals, that otherwise exist in nature are nonetheless commercially manufactured, as opposed to picked, mined or gathered. Citric acid, for example, exists in nature. However, most commercial uses include citric acid manufactured or derived from a fermentation process using fungi. Many consider that to be “synthetically derived” or “processed” which they contend cannot equal “natural.”
Your example, xanthan gum, is usually produced industrially from a fermentation process using various bacteria that are usually naturally occurring. But the fermentation process and further chemical treatment are what some folks say made the substance “synthetic” and not “natural.”
Q: Does the disclaimer “with added vitamins, minerals and trace nutrients” need to appear with the largest or most prominent use of the term natural on each panel?
A: Adding “with added vitamins, minerals and ____” can help your defense of a “natural” false advertising claim, but it is not necessarily a “get out of jail free”- type card
Q: How can pet food companies avoid lawsuits related to natural claims?
A: Easy way – don’t use the term “natural.” If you do, ensure you are 100% compliant with the letter and spirit of AAFCO’s definition. Have substantiation for your use. Tell the consumer exactly what you mean by using the term “natural” in conjunction with your product.