Scattered among the dictionary definitions for “natural,” one reads: “formulated by human reason alone rather than revelation.” This definition comes to mind when considering recent decisions in the proliferating world of food labeling class actions challenging use of the term “natural.” In these cases, judicial “reason alone” is increasingly doing away with complaints alleging far-fetched notions of what the word “natural” means to consumers.

The “natural” class action reflects the rise in litigation against food and beverage manufacturers over the past 10 years. In a typical case, plaintiffs allege the defendant misleadingly labels its product as “natural,” despite the product containing something the plaintiff considers “unnatural.”

“Natural” food labeling class actions began in earnest in 2008 and have persisted through today. The U.S. Court of Appeals for the Ninth Circuit's 2008 decision in Williams v. Gerber Products, which reversed a district court's Rule 12 dismissal of a “natural” class action, likely encouraged this trend.

In Williams, plaintiffs alleged the defendant misleadingly marketed its “Fruit Juice Snacks” as being made with “natural” ingredients. In an opinion which has now been cited in over 2,000 papers, the Ninth Circuit reasoned that “reasonable consumers” cannot be charged with reading the list of ingredients actually contained in the product—even if reading that list would dispel any alleged misrepresentation elsewhere on the label.

So, Williams helped plaintiffs chart a reasonably clear pathway past Rule 12 and into discovery. And other legal developments likely encouraged expansion of class actions into the food labeling setting. The need to identify new industries to target could have been spurred in part by reforms to securities class action litigation coming out of the 1995 Private Litigation Securities Reform Act, which placed stricter pleading requirements on securities class actions. That was followed by the U.S. Supreme Court's AT&T Mobility v. Concepcion opinion in 2011, which pre-empted state laws attempting to render unenforceable contracts that required individual (versus classwide) arbitration.

Whatever its causes, one thing is certain: The plaintiffs' class action bar has shown an enterprising degree of creativity when crafting complaints to challenge “natural” claims. An ingredient that is “processed,” but is plainly disclosed on the label? Not natural. Corn grown from seeds developed with bioengineering (as nearly all the United States' corn supply is)? Unnatural, too. Oats that contain some remnant of the pesticide used to help bring the crops to harvest (albeit present well below thresholds the Environmental Protection Agency considers safe for food)? That's unnatural as well.

The numbers bear out the persistency of these cases. While filings aimed at food labeled “natural” came down somewhat in 2016 from the 2015 peak of 53 cases, “natural” litigation remains active in 2017 with nearly 30 new cases filed as of early October.

Yet, in recent months, some decisions have begun to question whether use of the term “natural” is truly misleading to consumers—dismissing cases outright based on healthy judicial skepticism about whether any reasonable consumer would be deceived, and a corresponding sense of deference to the agencies charged with food labeling regulation in the first place.

For example, in Organic Consumer Associations v. Sioux Honey Association, in March 2017 the D.C. Superior Court dismissed a complaint alleging that consumers might by misled by a “natural” claim in honey alleged to contain miniscule amounts of glyphosate, a commonly used pesticide. The Sioux Honey court reasoned no consumer would be misled by that term given the “trace amounts” of glyphosate present. Moreover, the court noted that the FDA is engaged in regulatory proceedings to further define “natural” for food labeling—an effort thwarted by piecemeal litigation where definitions of “natural” are bounded only by lawyers' imaginations.

Similarly, in Gibson v. Quaker Oats, the U.S. District Court for the Northern District of Illinois dismissed a complaint in August 2017, also alleging misleading use of “natural” for food products with trace amounts of glyphosate. There, the court relied on federal pre-emption, noting the coordinated efforts of the United States Food and Drug Administration and the EPA, and explaining these agencies have responsibility to regulate both food labeling and pesticides.

Finally, in October 2017, in Lee v. Conagra Brands, the District of Massachusetts dismissed a complaint attacking use of “natural” for cooking oil made from bioengineered crops.

The court explained that the use of “natural” was consistent with both FDA policies on “natural” labeling and labeling of bioengineered foods. Moreover, the court noted that the notion that bioengineered crops are somehow not “natural,” stood in contrast to the fact that “humans have been genetically altering organisms for our use for at least 30,000 years.”

Taken together, what Sioux Honey, Gibson, and Lee begin to show is that pleas to judicial reason—invoking both federal agency activity and the court's own notions of common sense—may start to stem the tide of “natural” lawsuits.

Charles Sipos is a partner at Perkins Coie with more than 15 years' experience litigating complex commercial cases, with a focus on class action litigation and an emphasis on defending consumer protection class actions against food and beverage companies. Mica Simpson is an associate in Perkins Coie's litigation practice, where she assists clients in a range of complex civil litigation matters with a focus on class action defense, construction litigation, and antitrust litigation.