A recent set of cases targeting manufacturers and retailers of products labeled as “organic” may pose risks to businesses marketing or selling “organic” textile products to consumers in California.[1] Currently, the cases focus on furniture and bedding, but could expose clothing manufacturers and retailers to the risk of similar litigation. The plaintiff, which claims to be a nonprofit organization policing violations of the California Organic Products Act (“COPA”), seeks injunctive relief and attorneys’ fees to remedy alleged mislabeling of textile products as “organic.” In an issue of first impression in California courts, the plaintiff argues that COPA should apply to textiles despite ambiguity in the statute’s plain language. The plaintiff has targeted manufacturers of furniture and textiles such as bedding, pillows and mattresses, and has started to expand the case to include retailers as well.

COPA prohibits products from being sold as organic unless they are produced in accordance with the USDA’s National Organic Program (“NOP”). (Cal. Health & Safety Code § 110811; 7 CFR §§ 205 et seq.). It permits plaintiffs to obtain an injunction and recover their reasonable attorneys’ fees and costs of suit notwithstanding a lack of actual damages. Under the NOP, as incorporated into COPA, products sold, labeled, or advertised as “organic” must contain at least 95% organic ingredients. Further, products sold, labeled, or advertised as “made with organic (specified materials)” must contain at least 70% organic ingredients. These “made with organic (specified materials)” products may list up to three organic ingredients on the product label. Any non-organic substances in these products must also be included on the USDA’s list of approved non-organic substances set forth in the NOP.

If a multi-ingredient product contains some organic ingredients but less than 70% certified organic content in the whole product, certified organic ingredients may be listed in the ingredient list (along with their percentage) but the full product itself may not be labeled as “organic” or “made with organic materials.” Federal policy guidance on the statute further provides that textiles labeled as organic must not use a combination of both organic and non-organic sources for a single fiber identified as organic in the final product. However, the federal standards provide that if all instances of specific fibers in the finished product are certified organic, the label may claim the specific fibers are organic and identify the percentage of organic fibers.

According to the USDA, textile products may be sold as organic if they are certified under the International Working Group’s Global Organic Textile Standard (“GOTS”), a private certification standard for organic textiles. GOTS requirements for organic sales and labeling of textile products mirror the NOP, permitting “organic” labeling for 95% organic products, and “made with organic (specified materials)” labeling for 70% organic products. GOTS similarly includes a list of approved fibers. While it exempts certain non-organic “accessories” in organic textile products, it similarly requires these “accessories” to be made of approved materials.

While parallel federal laws under the NOP and GOTS remain pertinent, they do not preempt or negate the applicability of COPA to organic products. Rather, multiple federal courts in California have rejected arguments that COPA does not apply even where USDA organic standards and NOP regulations are controlling.

Nevertheless, no California cases to date have conclusively addressed COPA’s application to textiles or held a defendant liable for a violation of COPA based on a textile product, instead applying the statute to cosmetics and food products only. COPA expressly applies to “agricultural products,” but does not define this term, and the statute does not explicitly reference textiles in any section (in contrast to federal law). Further, while the statute mentions cosmetics, the language in many sections of the statute could be read to apply only to food products.

The plaintiff in the recent California state court cases relies on COPA’s broad language applying the statute to “all products sold as organic within the state,” which language was substituted in 2002 in the place of more narrow language applying the statute to only “food” products. (See Cal. Health & Safety Code § 110880.) The plaintiff used this argument in another case to avoid dismissal at the pleading stage.

We expect this litigation will pose an ongoing risk to both online and brick-and-mortar retailers who sell furniture and textiles in California that are labeled as “organic” but may not satisfy COPA’s requirements. We recommend that our clients review their products and any labeling, advertising or marketing using the word “organic” to ensure that any representations of the organic nature of the products comply with COPA.