A federal court in California has denied the motion to dismiss filed by Kiss My Face, LLC in a putative class action contending that the company misleadsconsumers by labeling its personal care products as “obsessively organic”; among other matters, the court determined that national organic standards applicable to agricultural commodities or products do not preempt the claims because they do not regulate cosmetics or personal care products. Dronkers v. Kiss My Face, LLC, No. 12-1151 (U.S. Dist. Ct., S.D. Cal., order entered September 26, 2013).  

Kiss My Face asserted that the plaintiff’s claims, premised on the labeling requirements of the U.S. Department of Agriculture’s (USDA’s) national organic program (NOP), were expressly or impliedly preempted by NOP standards. The company also argued that they should be dismissed or suspended under the primary jurisdiction doctrine and that the plaintiff had not sufficiently pleaded his fraud-based claims.  

As to preemption, the court was unswayed by the defendant’s reliance on USDA policy statements permitting cosmetic, body care and personal care products containing agricultural ingredients to be certified under the NOP because “[t]he policy statement and recommendations are informal agency actions lacking a rulemaking or adjudicatory process.” And observing that neither the National Organic Standards Board nor USDA was currently involved in rulemaking on the issue, the court found the primary jurisdiction doctrine inapplicable. While the court agreed that the heightened pleading standard of Federal Rule of Civil Procedure 9(b) applied, it further determined that the plaintiff had adequately pleaded his fraud-based claims.