FDA probe won’t derail Kraft ‘natural cheese’ lawsuit, says judge

The lawsuit*, filed in California in 2014, alleged that Kraft’s use of the term ‘natural cheese’ to describe its shredded fat free cheddar was misleading as the product contained artificial coloring, which reasonable consumers would not expect to find in a ‘natural’ product.

Kraft, meanwhile, says that in the cheese category, consumers know that ‘natural cheese’ refers to “the process​ by which the cheese is made” ​[ie. to distinguish it from ‘processed cheese’ – see box below] and do not interpret it to mean that the product does not contain any​ artificial ingredients.

It has also urged the court to stay the case on primary jurisdiction grounds (ie. to leave this to the FDA, which is currently conducting a probe​​ into the term ‘natural’ on food labeling), pointing out that several judges handling ‘natural’ lawsuits have exercised this option in recent months.

Judge: The FDA may not take a position on ‘natural’ ​

However, in a December 6 order, US district court judge John Kronstadt was not persuaded that a stay was appropriate.

He added: “The question here is not whether Kraft has violated FDA regulations​... [the plaintiffs refer to non-binding FDA guidance from 1993 saying natural means that ‘nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food’].

"Rather, in this case the question is whether the ‘natural cheese’ label is deceptive to the reasonable consumer.”​

FDA standards, added Judge Kronstadt, “are not determinative of the ultimate question presented by claims in the lawsuit ​[ie. that Kraft has violated California’s unfair competition, false advertising and consumer protection laws].  ​

“That issue is whether the reasonable consumer is likely to be deceived by product packaging."​

“Kraft Natural Cheese Shredded Fat Free Cheddar Cheese has never been labeled or advertised as ‘all natural,’ ‘100% natural,’ or containing only natural ingredients and coloring. ​

"Rather, the term ‘natural cheese’ is used to distinguish it from ‘processed cheese,’ which is made by combining natural cheeses with other ingredients, such as butter, water, or powdered milk. For decades, the US government has recognized the difference between ‘natural cheese, which is made directly from milk, and ‘processed cheese.’ "​

Kraft Food Group in court documents filed in July 2014​

Judge: This is a matter for the courts​

As for the primary jurisdiction option (ie. whether to stay the case until the FDA decides what to do about ‘natural’ claims), he said: “This case does not present technical and policy questions of the sort that would compel the application of the primary jurisdiction doctrine.​

“Plaintiffs have presented other evidence to support their claim that the reasonable consumer is likely to be misled by the use of the term ‘natural cheese’ label, including their own testimony and internal Kraft documents obtained in discovery. They have also presented other evidence that the term ‘natural cheese’ is material to the reasonable consumer, including the reports of their expert. ​

“Furthermore, what if any determination the FDA may make on this issue is unknown at this time. For example, it could decide once again not to take a position, or it could decide that the term ‘natural cheese’ is a special one in some respect. However, such a decision may not preclude the claims that are presented in this action … Under these circumstances, the exercise of discretion with respect to the efficient management of this longstanding litigation does not warrant a stay at this time.”​

FDA ‘natural’ probe has not put an end to 'natural' lawsuits​

While the FDA ‘natural’ probe has prompted some judges to stay natural cases, it has not had the decisive impact on ‘natural’ lawsuits that many food companies were perhaps hoping for​​, with false advertising lawsuits over natural claims continuing to be filed​​, and some – such as this – continuing to proceed through the courts despite the FDA’s intervention.

That said, Michael Mullen, senior vice president of corporate and government affairs at Kraft Heinz told FoodNavigator-USA he was confident the company would prevail, adding: "[The term] 'natural cheese' has been used for decades to distinguish cheese made directly from milk (like cheddar) from processed cheese.  We are confident that consumers understand this difference.”​

*The case is Claudia Morales et al v. Kraft Foods Group, Inc. et al 2:14-cv-04387, filed in the U.S. District Court for the Central District of California.​

Further reading:​

• Food litigation 101: Are you up to speed?​​
• What is natural? Over to you, FDA​ ​

Has the FDA’s probe into ‘natural’ claims on food labels put a stop to the tidal wave of false advertising lawsuits engulfing food manufacturers? Not if a new complaint against Dannon is anything to go by...

Click HERE​​ for details...