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Defining “Natural” Is A Tricky Proposition

Indirect or implied “natural” claims are everywhere already and the industry will continue to get bolder.

With a public suffering from chemical paranoia, there is a growing consumer demand for more “natural” products. Growing doubts about the meaning of “organic” and the spotty regulatory efforts to limit the amount of misleading labelling led the food industry to press the envelope for “natural” claims. Fortunately, or unfortunately, depending on where you stand, “natural” law is yet another area of deep regulatory confusion that is only going to get worse.

The standard and long-standing guidance is contained at subsection 4.7 of the Guide to Food Labelling:

“Nature,” “natural,” “Mother Nature” and “Nature’s Way” are terms often misused on labels and in advertisements. Advertisements should not convey the impression that “nature” has, by some miraculous process, made some foods nutritionally superior to others or has engineered some foods specially to take care of human needs. Some consumers may consider foods described as “natural” of greater worth than foods not so described.

Foods or ingredients of foods submitted to processes that have significantly altered their original physical, chemical or biological state should not be described as “natural.” This includes such changes as the removal of caffeine.

A natural food or ingredient of a food is not expected to contain, or to ever have contained, an added vitamin, mineral nutrient, artificial flavouring agent or food additive.

A natural food or ingredient of a food does not have any constituent or fraction thereof removed or significantly changed, except the removal of water.

Following the above, a table sets out processes considered by the Canadian Food Inspection Agency (CFIA) to cause minimum changes to the food or

food ingredient and a second table that describes processes considered to cause maximum change. Foods that are only subject to the former are more likely to be considered natural, those subjected to the latter less likely. The Guide also accepts that if the food additives, vitamins and mineral nutrients are derived from natural sources, then they may still be natural ingredients and the acceptable claim would be that the food “contains natural ingredients.”

AMBIGUITY

In spite of this guidance, there is still a great deal of regulatory ambiguity. The processes that are listed in the tables are not defined and are therefore subject to varying interpretations. The guidance is not law. Ironically, many natural health products would not meet the food guidance. It is not clear how far back you have to trace in the processing of an ingredient: if a maximum process were applied to an enzyme that was used to create an ingredient of an ingredient, would the “natural” claim be lost? I have already experienced enforcement threats.

The situation is no better in other countries. The U. S. Food and Drug Administration has been working on the issue since 1988 with still no more clarity. It has gone back for more consultation. The USDA continues to study the matter. Codex set out to define the term in 1990 and gave up in 1994.

Seeing the marketing potential, and what competitors are doing, “natural” claims will proliferate. Indirect or implied “natural” claims are everywhere already. The industry will continue to get bolder, especially with off-label promotions. Truly “natural” food manufacturers will complain to the CFIA. Uneven regional enforcement will emerge. Regulatory uncertainty will abound. Sound familiar?

– Ronald L. Doering is a past president of the Canadian Food

Inspection Agency. He practises food law in the Ottawa offices of Gowling Lafleur Henderson LLP,

and can be reached at Ronald. [email protected]

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