And the California Supreme Court said “Let there be more litigation” and there was more litigation.

This week, the California Supreme Court held that private citizens (i.e. class action plaintiffs’ attorneys) can bring state court actions against produce companies that falsely label their products “organic.”

The Plaintiff in this case alleged that she paid a premium for Defendant Herb Thyme’s “Fresh Organic,” believing they were in fact 100 percent organic. She was vexed to discover that Herb Thyme allegedly blends its organic produce with non-organic produce, selling it under the “Fresh Organic” label.  She filed a putative class action for violation of California’s Consumer Legal Remedies Act, unfair competition law and false advertising.

Defendant Herb Thyme argued that the federal  Organic Foods Production Act of 1990 (OFPA) vests the USDA with “exclusive authority to regulate the labeling and marketing of organic products and both expressly and implicitly preempts state truth-in-advertising requirements.”  The trial court agreed with Herb Thyme’s arguments and dismissed the case.  The intermediate Court of Appeal agreed that OFPA implicitly preempted state law claims, but disagreed that it did so explicitly.

But the California Supreme Court reversed, finding that OFPA neither expressly nor implicitly preempts state court actions.  The Court noted that while OPFA preempts states from creating alternative: (A) definitions for the term “Organic,” and (B) certification processes that growers must meet to qualify as “Organic,”   OPFA does not preempt state court actions like the one against Herb Thyme.  The Court noted that OPFA permitted states to enact more stringent standards regarding organic production and that other courts, including the Eighth Circuit, had also found that OPFA did not preempt state court actions.

So, we can add state litigation regarding the term “organic” to the virtual smorgasbord (check out the U.S. Chamber report “The New Lawsuit Ecosystem,” p.88) of food labeling litigation buzz words like “natural,” “hand-crafted,” “healthy,” “all-natural,” “whole-grain,” “lite,” “pure,” and “100%.”