By Kelly M. Morrison

On March 23, 2018, the Second Circuit affirmed the dismissal of a putative class action alleging that Abbott Laboratories mislabeled its Similac baby formula as organic, ruling that the plaintiffs’ claims were preempted by the federal Organic Foods Production Act (OFPA). 

The plaintiffs in Marentette v. Abbott Labs. Inc. alleged that Abbott violated New York and California consumer protection statutes and common law by labeling as “organic” Similac formula that contained ingredients that are prohibited in organic foods under the OFPA.  Because the organic label on the formula was approved under the National Organic Program (NOP) that was established to implement the OFPA, however, the Second Circuit held that the plaintiffs’ claims effectively challenged the OFPA certification process, and were therefore preempted. 

The Court’s conclusion rested primarily on the comprehensive nature of the NOP, which was enacted “to establish national standards governing the marketing of . . . organically produced products.”  The NOP requires a producer seeking organic certification to disclose all of the practices and procedures it will use in connection with the product, including every substance used during production, following which a certifying agent conducts an on-site inspection.  Only after the certifying agent confirms that production of the product complies with OFPA is a producer permitted to label it as organic.  The statutory scheme also confers enforcement power on the USDA and its agents, which the Court deemed further evidence that Congress did not intend individual consumers to challenge certification decisions. 

In an article published by Law360, Jenner & Block Partner Jan A. Larson and Associate Catherine L. Doyle examine the potential impact of court action on ransomware coverage.  The authors explore the pending district court action of Moses Afonso Ryan Ltd. v. Sentinel Insurance Company Ltd.  They explain that the case wrestles with the classification of, and coverage for, business interruption and lost income suffered by a law firm in the wake of a ransomware attack.  “The case offers a preview into whether courts will construe broad, general business insurance provisions to protect insureds against significant lost-business income caused by ransomware attacks, or whether insurers will enjoy wide latitude to hide behind more stringent limitations of liability found in narrower provisions related to data and software damage,” they observe.

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In an article for Law360 titled “Anticipating This Year's HIPAA Enforcement Trends,” Partner David P. Saunders outlines the possible reasons for why it is still unclear what HIPAA enforcement may look like under the new administration.  Mr. Saunders suggests that perhaps the last 12 months of slow HIPAA enforcement represents the new normal.  To evaluate this hypothesis, he examines two documents that may indicate where HIPAA enforcement is headed in 2018:  1) the regulatory priorities of the US Department of Health and Human Services (HHS) and 2) the President’s budget for HHS.

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