State Law Can’t Mess with Your “Organic” Label if You’re Certified Organic

The USDA National Organic Program, through its certifying agents, certifies that farmers, ranchers, and food processors are “organic” and thus authorized to use the “organic” label and seal on their products.  The USDA maintains a National List of Allowed and Prohibited Substances.  This list tells certified “organic” businesses which non-organic ingredients they may use under their organic label.

The Organic Foods Production Act does not permit consumers to sue the USDA directly for violations of the program, so a group of consumers sued Abbott Laboratories.  Abbott is certified “organic” by the USDA  to make an organic version of its popular Similac infant formula. The consumers claimed that under New York and California labeling laws, Abbott’s Similac Advance Organic Infant Formula was mislabeled as “organic” because it contained several non-organic minor ingredients that were declared on the label but not expressly listed on the USDA National List as allowed in “organic” food.

This situation has arisen because until 2010 the USDA said all these non-organic ingredients could be used in organic infant formula because they were “nutrient vitamins and minerals,” and did not need to be listed individually.  In 2010 the USDA changed its policy and started rulemaking to take these non-organic ingredients out of the blanket category of “nutrient vitamins and minerals.” This would require them to seek approval one-by-one to get on the National List.  Until this rulemaking is completed, these ingredients remain in organic infant formula, permitted under the old “nutrient vitamins and minerals” rubric.  This rulemaking has stalled, and this is why those ingredients may still be used in organic infant formula.

The issue in the consumers’ lawsuit was whether plaintiffs under state law could challenge the “organic” labeling of a product manufactured under a valid USDA organic certificate.   The U.S. District Court in Brooklyn, NY, agreed with Abbott that Abbott had the right to make the “organic” claim.  The court found that in the Organic Foods Production Act, Congress directed the USDA to administer a uniform national standard for “organic” labels, and if state law in any of the 50 states could decide a product was not “organic,” this would destroy the uniformity Congress intended.

On March 23 the U.S. Court of Appeals for the Second Circuit, in New York City, affirmed the lower court decision.  It ruled that the consumers’ claim, i.e. that under state law the Similac “organic” label was false, conflicted with the USDA organic certification scheme.  This meant that the Federal organic program “preempted” state law.  This ruling echoed an earlier decision by the Court of Appeals for the Seventh Circuit, in St. Louis, in 2010. In that case, consumer plaintiffs were unsuccessful in challenging the “organic” label for milk from Aurora Organic Dairy.

For a legal analysis of these cases in the Circuit Courts and lower courts, there is a helpful article here:

Second Circuit Affirms Preemptive Effect of Organic Food Production Act

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