A recent decision in the U.S. District Court of the Northern District of California, Brown v. Hain Celestial Group, Inc., provides important insights into cosmetic and food product organic claims. In 2011, a complaint filed against a cosmetic company alleged that the company’s organic claims violated the California Organic Products Act of 2003 (“COPA”). COPA prohibits products that are handled, processed, sold, advertised, or offered for sale in California from being labeled as organic or made with organic ingredients unless the product contains at least 70 percent organic ingredients. The defendant cosmetic company filed a motion to dismiss, alleging that the California statute was preempted by the federal Organic Food Products Act of 1990 (“OFPA”). USDA, the agency tasked with creating regulations under OFPA and enforcing these provisions, has not promulgated regulations applying the federal rules to personal care products, but in some policy documents it has indicated that federal organic requirements and certifications may apply to cosmetic products that contain agricultural ingredients. The California statute specifically applies to cosmetic products. COPA also allows for a private right of action, while only USDA is allowed to enforce organic labeling requirements under the federal statute.

In response to the defendant’s motion to dismiss, in early August 2012, a judge for the U.S. District Court for the Northern District of California set forth two important propositions regarding the scope of the federal organic regulation and its preemption.

  • The court found that the federal organic statute does apply to cosmetic products that use agricultural products. OFPA defines “agricultural product” as “any agricultural commodity or product, whether raw or processed, including any commodity or product derived from livestock that is marketed in the United States for human or livestock consumption.” The court noted that “[a]lthough the phrase ‘for human or livestock consumption’ could be read as limited to agricultural products that are eaten or drunk, the court adopts a broader view that does not rely on the end use of the crops or livestock-derived product but, instead, finds that OFPA covers cosmetics that use such products.”
  • But, the court also found that while OFPA applies to cosmetics that use agricultural products, OFPA’s provisions do not preempt state consumer protection laws that do not conflict with the federal statute and regulations regarding labeling of organic products. Rather, OFPA only expressly preempts a narrow set of laws that govern certification requirements for the production and handling of organic products.

Under these circumstances, the defendant’s motion to dismiss was denied. This holding appears to have implications beyond cosmetic companies to illustrate that food products, and possibly other products that contain “agricultural products,” making organic claims may be vulnerable to consumer challenges in California, so long as the consumer protection law under which a consumer brings a claim does not conflict with federal regulations regarding the labeling of organic products.