FDA Law Blog: California Supreme Court Holds that the Organic Food Production Act of 1990 Does Not Preempt State Consumer Lawsuits Regarding Organic Mislabeling

FDA Law Blog: California Supreme Court Holds that the Organic Food Production Act of 1990 Does Not Preempt State Consumer Lawsuits Regarding Organic Mislabeling

California Supreme Court Holds that the Organic Food Production Act of 1990 Does Not Preempt State Consumer Lawsuits Regarding Organic Mislabeling Posted: 11 Dec 2015 07:24 AM PST By Riëtte van Laack – The Supreme Court of California recently concluded that federal law does not preempt claims against allegedly intentional misrepresentations of organic status of a food. According to the Court, the Organic Foods Production Act of 1990 (OFPA) only preempts state law on matters related to organic certification, not private actions against alleged misuse of the “organic” label.  According to the complaint, Herb Thyme, the defendant, has several conventional farms and one farm that is certified organic. Plaintiff alleges that Herb Thyme brings its conventionally grown and organic products to the same facility where they are processed together. According to Plaintiff, the organic and conventional product are mixed and sold with the same “Fresh Organic” label. In other words, Plaintiff claims that the Herb Thyme markets non-organic product as organic, not that Herb Thyme’s organic farm did not comply with the organic requirements. As we previously reported, the Court of Appeals previously determined that the express preemption provision was narrower than the claims here. The California Supreme Court agreed. However, the California Supreme Court disagreed regarding obstacle preemption. Herb Thyme argued that state private actions were an obstacle to the federal purpose. The Supreme Court did not see any such obstacle. The opinion includes a detailed description of the history of organic standards in support of the Court’s conclusion that the OFPA was intended to create national standards for production, labeling and sale of organic products; not to prevent consumer actions under state law against the fraudulent labeling of conventionally produced products as organic. The court notes that states may have their own organic program provided it is approved by the National Organic Program (NOP). California has its own organic program, the California Organic Products Act of 2003. This state law incorporates by reference federal regulations under the Organic Products Act. Additionally, it grants authority to the Secretary of the Department of Food and this state program authorizes anyone to file a complaint about noncompliance, and various state authorities may bring enforcement actions and impose penalties. The Court did not find any evidence to support express or obstacle preemption of private actions under state law. The OFPA sets the national standards for the term organic and certification procedures. However, it does not create “exclusivity” regarding actions related to misuse of the organic label. According to the Court, state consumer fraud lawsuits further the purpose of the law, they promote avoiding consumer deception, build consumer trust in a standard definition of “organic,” and protect legitimate organic producers from unfair competition. If the Court were to find obstacle preemption it “would render organic labeling uniquely immune from suits for deception because of legislation Congress passed, in part, to prevent food from being ‘deliberately mislabeled as “organic.”’ . . . [The law] cannot be interpreted, under the guise of obstacle preemption, as shielding from suit the precise misconduct [the law] sought to eradicate.” Finding no preemption, the case will be remanded.