Local Matters
Is Log Cabin All Natural Syrup really “all natural” if it contains synthetic ingredients? What about Birds Eye “all natural” frozen vegetables, believed to contain genetically engineered ingredients not listed on the package?
Not according to two Vermont consumer advocacy groups, which charge that these and other “all natural” claims are “deceptive and misleading” to consumers. Both groups are suing the manufacturer to stop it from making those “fraudulent” claims — or else to remove those products from Vermont store shelves.
On Tuesday, Law for Food, a Stowe-based law firm that represents small-scale farmers and food producers, and the Vermont Community Law Center, a new Burlington-based public-interest law firm, filed a class-action lawsuit in Chittenden Superior Court. Their target: New Jersey-based Pinnacle Foods Group, owner of the Log Cabin and Birds Eye brands. The suit alleges that Pinnacle’s “all natural” claims “violate the letter and the spirit” of Vermont’s consumer-protection law.
“One of the things that the Vermont Consumer Protection Act does is prohibit misrepresentations that would be deceptive to the reasonable consumer,” explains Kenneth Miller, an attorney with Law for Food. “Using ‘all natural’ the way they’re using it and placing it next to something that is all natural — like Vermont maple syrup — is clearly trying to deceive the consumer.” Log Cabin comes in a tan plastic jug that closely resembles the containers commonly used by Vermont maple-syrup makers.
The lawsuit charges that Log Cabin syrup cannot legitimately be called “all natural” because it includes ingredients such as xanthan gum, which is made in a laboratory and the U.S. Department of Agriculture lists as “synthetic.” Likewise, the suit alleges that Birds Eye frozen corn contains genetically engineered corn, which “is not natural by definition.” The lawsuit quotes from the official website of Monsanto — a leading producer of GE seed corn — which defines genetic engineering as organisms that have had their “genetic makeup altered to exhibit traits that are not naturally theirs” (emphasis added).
By any measure, this lawsuit will be a David-and-Goliath effort. Pinnacle Foods is a Fortune 1000 company that, according to its website, employs more than 4300 people in North America. Its other national brands include Aunt Jemima, Duncan Hines, Hungry-Man and Vlasic. In a written statement, a Pinnacle Foods spokesperson in Parsippany, N.J., says, “Although we have heard about a pending lawsuit, we have yet to be served and cannot provide further details at this time.”
In the past, similar lawsuits and consumer “right-to-know” bills enacted by state legislatures have tried, usually unsuccessfully, to force manufacturers to disclose the presence of GE and other nonnatural ingredients on their labels. Most have been struck down by the courts as unconstitutional because they ran afoul of the Commerce Clause, which grants Congress the exclusive right to regulate interstate commerce, i.e., food labeling. Moreover, the federal government has no legal definition for the word “natural” as it pertains to food or cosmetics packaging.
The Vermont Attorney General’s office was not aware of Law for Food’s legal challenge and, after receiving a copy of the complaint, did not offer any speculation about its chances.
In January, organic farmer and former state lawmaker David Zuckerman joined a similar class-action lawsuit that tried, unsuccessfully, to protect organic farmers whose fields are cross-contaminated by GMO seeds from patent lawsuits brought by Monsanto. But a federal judge in New York dismissed the complaint. The Hinesburg farmer says he plans to appeal the ruling.
Jared Carter, a lawyer with the Vermont Community Law Center, says he thinks this lawsuit will fare better than its predecessors.
“I don’t think any courts out there have said states don’t have an interest in protecting their consumers from fraud,” Carter says. “If ExxonMobil came in and tried to label their gasoline as ‘nonpolluting’ gasoline, there’s no question that the Vermont Consumer Protection Act could come in and stop that.”
Sen. Philip Baruth (D-Chittenden), who is lending his support to the lawsuit, sees it as part of a larger, “two-pronged approach” in Vermont to force food manufacturers to more accurately disclose what’s in their products, notably GE ingredients. Baruth, who serves on the Senate Agriculture Committee, points out that a bill introduced during the 2011-12 legislative session would have required food producers to do just that.
“House Agriculture had that bill, and, to put it bluntly, they sat on it and it died,” Baruth says. “That was on purpose, and it’s wrong.”
Baruth has drafted his own “Right to Know, Right to Grow” bill, which he says includes a GE-labeling component, as well as a provision that guarantees farmers the right to save their own seeds for future harvests. Currently, the patent contracts that farmers sign with GE seed providers, notably Monsanto, makes it illegal for farmers to save seeds from year to year, undermining thousands of years of agricultural practices. Baruth claims that those provisions essentially turn Vermont farmers into “modern-day sharecroppers for Monsanto.”
Chittenden County State’s Attorney T.J. Donovan has also publicly endorsed the class-action suit.
“Food is political, and this is a consumer-rights issue,” says Donovan, who is also a Democratic candidate for Vermont attorney general. “People have a right to know and make informed decisions about what they’re putting in their body.”
Donovan agrees with Baruth that this is an area of law where the legislature — and attorney general — should act more aggressively to pass bills that “will stand up in a court of law.”
At the federal level, Sen. Bernie Sanders is trying to do just that. On Monday the U.S. Senate agreed to consider Sanders’ amendment to the farm bill that would require clear labels on foods and beverages containing genetically modified ingredients. A vote on that amendment is expected later this week.
Attorney Jared Carter agrees with taking a more aggressive stance in Vermont. “Poll after poll shows that 90 percent of Vermonters support GMO labeling,” he says. “Yet there’s still hand wringing in Montpelier.”