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Are there only whole foods in Whole Foods Market? Does nature really own Nature’s Own bread? Will Liquid Death water (yes, that’s a thing) really kill you? And could a Lifesaver revive you? These are the questions raised by the recent federal court decision, Orrico v. Nordic Naturals, Inc., No. 1:22-cv-03195 (E.D.N.Y. Sept. 28, 2023).
The case began with a plaintiff purchasing “Nordic Omega 3 Gummies” sold under the brand name, “Nordic Naturals.” The plaintiff explained that at the point of purchase, she was unable to ascertain “the true nature of the ingredients merely by reading the ingredients label.” However, somewhere between the store and the courthouse, she discovered based on the same previously inscrutable label that ingredients like gelatin, beta-carotene, and citric acid are “synthetic,” whatever that might mean. She then filed suit, seeking to represent a national class in a false advertising action challenging every single Nordic Naturals-branded product – claiming they too contain “synthetic” ingredients and therefore aren’t “natural.” (She does not seem to have challenged any implied claim that the products are of “Nordic” and/or Greek (“Omega”) origin.)
Nordic Naturals, naturally, moved to dismiss. The company argued that it would be implausible for reasonable consumers to conclude that the brand name “Nordic Naturals” means that all of its dietary supplement capsules, gummies, and syrups are straight from nature. The court, however, refused to dismiss, finding that the plaintiff’s allegations were at least plausible for the purposes of surviving a motion to dismiss. The court, first, reasoned that consumers need not read the ingredient list at all in assessing front-of-pack claims. Further, because the “brand name [was] the only representation on the front label” as to ingredients being “natural or artificial,” a consumer could plausibly believe the product to be “all-natural,” whatever that means.
While courts have been far from consistent in how they approach challenges to “natural” claims, two prior cases, in particular, are important to consider in placing the Nordic Naturals decision in proper context. The first decision is the relatively recent decision in In re KIND LLC “Healthy & All Natural” Litig., 627 F. Supp. 3d 269 (S.D.N.Y. 2022), where plaintiffs challenged “All Natural” claims for KIND bars. The court granted summary judgement in favor of KIND after finding that the four different plaintiffs involved in the case put forth five different theories of what “natural” might mean to reasonable consumers. The proffered definitions ranged from a dictionary definition, “existing in or caused by nature; not made or caused by humankind,” to a plaintiff’s personal belief that the term means “pull[ed] out of the Earth” or “dirt,” or “untouched.” The court found that where the plaintiffs failed to demonstrate any broad understanding of the “All natural” claims, they failed to prove the claims deceptive.
In a similar, earlier case, Pelayo v. Nestlé USA, Inc., 989 F. Supp. 2d 973, 976 (C.D. Cal. 2013), a plaintiff alleged that “All Natural” claims for refrigerated pastas were deceptive where the products contained certain ingredients the plaintiff believed to be “unnatural, artificial, or synthetic.” This plaintiff too advanced multiple definitions, from dictionary definitions of “natural” to a definition for “synthetic” from the federal regulatory scheme for “organic” agriculture products. The court found that no clear understanding of either term emerged, particularly where the “the reasonable consumer is aware” that the “mass-produced” pastas were “not springing fully-formed from Ravioli trees and Tortellini bushes.” The court dismissed.
To this day, there is still no regulatory definition of “natural” or any broad, concrete understanding of the term. It also continues to be the case that there are no Ravioli trees, Tortellini bushes, or fields of Dietary Supplements. Nature still lacks any ownership rights in bread, and you can still buy paper towels at Whole Foods, but you shouldn’t eat them. They’re not food.
The saving grace of the Nordic Naturals decision is that it is simply one motion to dismiss decision, amid many other decisions, including KIND and Pelayo. Rather than accept any particular definition for “natural,” the court merely found that the plaintiff’s case was at least plausible. To prove anything further would require a full trial assessing the merits, including how consumers understand the term “natural.”