Recently, the Eastern District of New York held that the Organic
Foods Production Act of 1990 (7 U.S.C §§ 6501–6522)
preempts various state claims that Abbott Laboratories, Inc.
falsely labeled its Similac® Advance® Organic Infant
Formula as organic. Marentette v. Abbott Laboratories,
Inc., 15–CV–2837, 2016 WL 4444787 (E.D.N.Y Aug.
23, 2016). This decision comes on the heels of Quesada v. Herb
Thyme Farms, Inc., 62 Cal.4th 298 (2015), where the California
Supreme Court held that the Act does not preempt state claims
against a certified grower of organic food for intentionally
mislabeling organic produce.
Marentette and Quesada reach opposite
conclusions and symbolize two sides of the same implied preemption
coin. That clash centers on a distinction made in In re Aurora
Dairy Corp. Organic Milk Mktg. & Sales Practices Litig.,
621 F.3d 781 (8th Cir. 2010). In deciding the Act's implied
preemptive scope concerning state claims against organic-certified
dairy producers and retailers, Aurora distinguished
between complaints that attack the USDA's certification process
itself and complaints that challenge the facts underlying that
certification. Aurora considered an attack on the
certification process itself as a direct challenge to the Act's
purpose – namely to establish consistent national standards
governing organically produced products flowing through interstate
commerce, 7 U.S.C § 6501. Aurora, 621 F.3d at 795
("[T]o the extent state law permits outside parties, including
consumers, to interfere with or second guess the certification
process, the state law is an obstacle to the accomplishment of
congressional objectives of the [Act].") (internal quotations
omitted). Aurora viewed an attack on the facts underlying
certification, however, as "not necessarily conflict[ing] with
the [Act's] purposes." Id. at 797. Based upon
that distinction, Aurora found the Act only preempted
state claims challenging the certification process itself.
Because the Eighth Circuit is the only circuit court to address
this issue, Aurora weighs heavily in any implied
preemption analysis concerning the Act. Quesada and
Marentette reflect this reality. In Quesada, the
California Supreme Court stressed that "the complaint here
accepts as valid [i.e. does not challenge] Herb Thyme's
certification and compliance with federal regulations on its
certified organic farm," and instead challenges "the
intentional commingling and fraudulent substitution of conventional
for organic produce[.]" Quesada, 62 Cal.4th at
320-21. Although Quesada did not expressly adopt
Aurora's reasoning, it took pains to avoid labeling
the challenge as an attack on the certification process itself. On
the other hand, in Marentette, the district court bluntly
stated that the "challenge to this labeling [i.e. the
combination of the word 'organic' with the USDA seal on the
infant formula label] cannot be described in any way other than a
direct challenge to the USDA-accredited certifying agent's
decision itself." Marentette, 2016 WL 4444787, at *6.
Unlike Quesada, Marentette expressly adopted the
Aurora distinction, concluded that the Act preempts a
challenge to the certification decision itself, and granted
Abbott's motion to dismiss.
Quesada and Marentette thus reveal an
important lesson: The success of a preemption argument under the
Act depends heavily on the characterization of the challenge.
Stated succinctly: Ignore Aurora at your peril.
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