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.