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Second Circuit Affirms Dismissal of Organic Baby Formula Suit on Preemption Grounds

By Kelly M. Morrison

Bottle-container-high-chair-374756On 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. 

Plaintiffs made several arguments against preemption, including that their state-law claims sought to vindicate – not undermine – the OFPA’s requirement that organic-labeled products be produced in accordance with the statute.  But the Second Circuit found that this argument “rests on a false premise – that [plaintiffs’] claim that Abbott’s products violate federal law is distinct from a claim that Abbott falsely or wrongfully obtained its organic certification.”  The Court saw “no such distinction,” explaining that plaintiffs’ “position necessarily undermines Congress’ purpose in enacting the OFPA, because it demands adjudication of a product’s organic status separate and apart from the scheme Congress laid out in the law.”  In other words, plaintiffs’ attempt to challenge the organic status of a product that was “lawfully certified under the OFPA,” “strikes at the very heart of the OFPA certification process.”

Although the Second Circuit’s decision affords a level of protection to companies selling products certified as organic, the Court left open the possibility that a plaintiff could challenge an “organic” product as improperly labeled because, for example, the producer “deceived the certifying agent as to the actual ingredients” contained in the product.  Given the Marentette plaintiffs’ claim during oral argument “that they ha[ve] evidence that Abbott used ingredients in its organic-labeled infant formula that it did not disclose to the certifying agent,” the Second Circuit’s opinion may not be the final chapter of this story.