Are GMOs “Natural”? FDA Won’t Say

By Ricardo Carvajal –

As we noted in a prior posting, several courts have stayed or dismissed class actions based on the doctrine of primary jurisdiction in cases that raise the question of whether a GMO-containing food can properly be labeled as “natural.”  In response to referrals from those courts, FDA issued a letter on January 6, 2013 (available here) declining to determine whether “food products containing ingredients produced using bioengineered ingredients may be labeled ‘Natural’ or ‘All Natural’ or ‘100% Natural.’”  The letter states several reasons for the agency’s decision not to engage on the issue:

• Revocation or amendment of the agency’s policy on the use of “natural” claims in labeling should be conducted through a public process that engages all stakeholders, and not in the context of private litigation.
• Defining “natural” would involve the interests of other Federal agencies, including USDA, and have implications that go “well beyond the narrow scope of genetically engineered food ingredients.”  Thus, even if FDA were to engage in the process, “there is no assurance that [FDA] would revoke, amend, or add to the current policy, or develop any definition at all.”
• The agency’s limited resources are largely occupied by public health and safety matters, including FSMA implementation under court-ordered deadlines and the issuance of nutrition labeling regulations (including menu labeling).

In September 2010, FDA declined a similar request from a federal court.  It appears that the subsequent enactment of FSMA and the burdens associated with implementation of that law have given the agency an additional reason to shy away from attempting to define “natural.”