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From Health Law Daily, March 26, 2018

Challenges to organic Similac® baby formula label preempted

By Rebecca Mayo, J.D.

A challenge to the "organic" quality of a product labeled as USDA Organic under the Organic Foods Production Act (OFPA) is necessarily a challenge to the certification granted to the product pursuant to a federal scheme. An appeals court upheld a district court decision granting a motion to dismiss a class-action suit against Abbott Laboratories, Inc. as preempted, because the suit claimed Abbott included ingredients in its organic-labeled infant formula that are not permitted under the OFPA (Marentette v. Abbott Laboratories, Inc., March 23, 2018, Cogan, B.).

Background. Three parent consumers claim that they purchased Similac® Advance Organic Infant Formula at various times from 2012 to 2014 after seeing and relying on the word "organic" and the "USDA Organic" seal on its packaging, which led the consumers to believe that the formula was organic. The parents brought multiple consumer-protection claims, common-law breach of express warranty claims, and common-law unjust enrichment claims against Abbott under state law, alleging that the formula contains 16 ingredients prohibited by the OFPA and is therefore not organic. A district court granted a motion to dismiss filed by Abbott, arguing that the state law claims were preempted by the OFPA, and the parents appealed.

Certified organic. Under the OFPA, a product may be sold or labeled as organic if it was produced and handled in compliance with an organic plan agreed to by the producer and handler of such product and the certifying agent. Organic plans must be certified by an accredited certifying agent. The USDA submitted an amicus brief clarifying that certifying agents review and approve both the process and ingredients of the final product, but generally do not inspect or certify batches of products.

Preemption. Abbott argued that OFPA preempts the parents’ claims because there is a conflict between the federal law which authorizes Abbott to label Similac as organic and the state-law causes of action through which the parents seek to impose liability for that same label. The parents argue that the certification process alone does not establish that the products are actually organic, in that they do not contain any prohibited synthetic substances. Although the formula was certified organic pursuant to the OFPA, the consumers claim product is not organic and the federal certification should be separated from their claims.

Decision. The court found that there is simply no way to rule in the parents’ favor without contradicting the certification decision, and, through it, the certification scheme that Congress enacted in the OFPA. The parents do not allege that the organic plan was improperly certified, nor that Abbott deceived the certifying agent as to the actual ingredients. Therefore, the argument that the organic-labeled formula is not really organic is a challenge to the certification decision itself. Even if the claims were meritorious, the court would have to look behind Abbott’s certification granted pursuant to a federal scheme to make that determination. Further, permitting the parents’ claims would lead to a divergence in applicable state laws as numerous court systems adopt possibly conflicting interpretations of the same provisions of the OFPA, which would defeat the intention of the OFPA.

The case is Docket No. 17-62-cv.

Attorneys: Todd S. Garber (Finkelstein, Blankinship, Frei-Pearson & Garber, LLP) for Sara Marentette. Shawn J. Gebhardt (Winston & Strawn LLP) for Abbott Laboratories, Inc.

Companies: Abbott Laboratories, Inc.

MainStory: TopStory CaseDecisions FDCActNews FoodNews InspectionNews FoodStandardsNews LabelingNews PreemptionNews ConnecticutNews NewYorkNews VermontNews

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