This week FTC took action against five personal care product companies making natural claims on their products in online ads. It’s true that the companies involved are outside of the dietary supplement arena, but Denver-based attorney Justin Prochnow, a shareholder in the firm Greenberg Traurig, said the message is relevant to all manufacturers of goods that are intended to go on, or into, a consumer’s body.
“I think in this era when all natural claims are such a hot button topic, when any regulatory agency weighs in it is relevant. There is nothing in their comments or their decisions that would lead you to conclude that they would behave differently if it were a dietary supplement company,” Prochnow told NutraIngredients-USA.
The five companies, based in California, Colorado, Tennessee and Utah, make sunscreens, hand and body lotions and hair care products. The claims used were “all natural” and “100% natural.” FTC took issue with this, as the products contained synthetic ingredients such as dimethecone, polyethelene and phenoxyethanol.
For FTC, the concept is clear. Mean what you say and say what you mean.
“‘All natural’ or ‘100 percent natural’ means just that -- no artificial ingredients or chemicals,” said Jessica Rich, Director of the FTC’s Bureau of Consumer Protection. “Companies should take a lesson from these cases.”
Prochnow admitted that there is no regulatory definition of what “natural” means. It seems in the present situation that it’s easier to say what isn’t natural that what is. Dimethecone—not natural. Polyethelene, the same. Neither dimethecone (an emollient) or polyethelene (a plastic usually listed as polyethelene glycol that is used as a surfactant) are intended to mimic something that is natural. But what about some of the synthesized versions of botanical compounds that are found in the dietary supplement industry?
“Just because you call it ‘bioidentical’ does not mean it is natural. I don’t think it means that at all,” Prochnow said.
Don’t forget the excipients
The same could be said for that list of excipients and other trace ingredients for which there is no suitable organic alternative, such as magnesium stearate, a lubrication additive that makes tablet manufacture feasible (though an organic alternative for this is just coming to market). Does that mean that a product could be certified organic and still not qualify for a “100% natural” claim?
“What I tell companies is that a ‘100% natural’ claim does not leave much room for error,” Prochnow said. “That’s why you have to be very careful, and very specific. ‘All natural’ doesn’t mean natural, except for the excipients I used.”
Prochnow said the key is to craft a claim in such a way that it communicates as effectively and specifically with the consumer as possible. It’s unclear what consumers take away from an ‘all natural’ claim, and how powerful a marketing message that is. But there is no doubt that such claims will get the attention of regulators and that the plaintiffs bar views such claims as an opportunity. So Prochnow said if companies are still committed to the natural claims there are some ground rules to follow.
“I’d try to steer them to claims such as ‘made with natural, botanically-sourced ingredients.’ SoBe (a PepsiCo brand that manufactures teas and juice blends) modified their claims to something like ‘all natural with added vitamins and minerals’ to account for the synthetic nature of those ingredients,” he said.