A natural revolution

What does “natural” mean in relation to a food? That is a question that the U.S. Food and Drug Administration (FDA) is also wondering. This past November, the FDA reached out for comments from interested stakeholders. “Natural” is a seemingly simple term, but with an eclectic personality. It may mean many things to different people. For example, does it mean that a food represented as “natural” would not contain any agriculture chemical residues, nor be a product derived from a genetically engineered food source? Should the term be prohibited outright?

The FDA has not formalized any regulations defining “natural.” It has, however, maintained a policy dating back to 1993 whereby it interprets “natural” as meaning that “nothing artificial or synthetic (including all colour 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.” Food processing methods are not considered. In contrast, the “natural” policy under the USDA’s Food Safety and Inspection Service (FSIS) related to meat and poultry products do include consideration that such foods would be only minimally processed.

So why after more than 20 years is the FDA undertaking possible changes to its policy? For the past number of years, private litigation has been ongoing over “natural” and what it means in the context of a food. Several federal courts have asked the FDA for administrative determinations. Within the last year as well, there have been four citizen petitions requesting that the FDA either define “natural” or prohibit it outright.

In July 2015 the Safe and Accurate Food Labeling Act of 2015, (described by anti-GMO activists as “The DARK Act,” a play on “Denying Americans the Right-to-Know”), passed in the U.S. House of Representatives. To become law it still needs to pass the Senate, and then onto the president. If it does become law it would require the FDA to regulate the term “natural” on food labelling. There is no guarantee that the FDA will do anything – it has had two decades of solid “doing nothing” practice, and it is good at that. The comment period ends Feb. 10, 2016. After which the FDA will need to ruminate over what are sure to be some very interesting comments.

On the Canadian side, things are comparatively quiet on “natural.” It has not been as litigious, and the dialogue from advocacy groups in Canada aiming to reserve the designation of “natural” for organic foods and those that are not derived from genetically engineered sources, have also in comparison been softer. The matter had, however, been on the table under the Canadian Food Inspection Agency’s (CFIA) broader food labelling modernization. It ranks as a matter under consumer values, which are overshadowed by the priorities related to health or safety. Where and how quickly the CFIA is going on this is not currently clear.

While Canada also does not have any formal regulation on “natural” claims, the CFIA does have guidelines. These have not changed much over the past 20 or so years. The expectations for a food represented as “natural” include the following:

• Not to contain, or to ever have contained, an added vitamin, mineral nutrient, artificial flavouring agent or food additive;
• Not to have any constituent or fraction thereof removed or significantly changed, except the removal of water;
• Not to have been submitted to processes that have significantly altered their original physical, chemical or biological state.

Unlike the policy by the U.S. FDA, the CFIA’s guidelines consider the effects of processing. These include acceptable minimum processes like, but not limited to, reconstitution without chemical addition, treatment with toxic gases without chemical change, and emulsification without synthetic chemical addition. Chemical synthesis, curing with chemical addition and hydrogenation are examples of unaccepted maximum processes. In this regard, the CFIA’s guidelines are more akin, but not identical to, those of FSIS. As in the U.S., the guidelines in Canada do not disqualify “natural” claims where a food is or contains ingredients derived from genetically engineered sources. Furthermore, the CFIA has distinct guidelines on natural production methods related to meat and poultry products, such as “natural beef – raised without the use of hormones.”

As food labelling modernization moves forward, a clearer picture of how the CFIA will approach “natural” will emerge. It is likely safe to assume that the agency has other priorities on their plates. For now we can enjoy watching our neighbours struggle through their modernization.

Gary Gnirss is a partner and president of Legal Suites Inc., specializing in regulatory software and services. Contact him at president@legalsuites.com