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.