August 21, 2018

August 21, 2018

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August 20, 2018

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Organic Baby Food for Thought: Second Circuit Holds that OFPA Certified Organic Product Labels Cannot Be Challenged as Misleading Under State Law

The Second Circuit recently affirmed the dismissal of a class action asserting state law claims that a manufacturer falsely advertised its baby formula as organic.  In doing so, the appellate court agreed with the district court’s finding that the claims were preempted by a federal law called the Organic Foods Production Act (“OFPA”).  Marentette v. Abbott Labs., 886 F.3d 112 (2d Cir. 2018).

A group of parents who purchased baby formula sued Abbott under state law for allegedly marketing its baby formula as organic even though it supposedly did not qualify as such under state law as plaintiffs construed it.  However, the OFPA has its own process for determining whether products can be labeled as organic, and the baby product at issue had already been certified as organic pursuant to the OFPA’s statutory scheme.  Thus, the district court found plaintiffs’ claims to be preempted.

In affirming the district court’s ruling that plaintiffs’ state law claims “posed an obstacle to Congress’s objectives in enacting the OFPA,” the Second Circuit elaborated that there was simply no way to rule in plaintiffs’ favor without contradicting the certification decision by an accredited certifying agent acting pursuant to the OFPA’s terms.  Thus, the Second Circuit found a direct conflict between plaintiffs’ construction of state law and the structure and purpose of the OFPA.

The Second Circuit noted that an OFPA-compliant certification of a product as organic does not automatically preclude all false advertising lawsuits addressing an advertiser’s touting its product as organic.  Citing a decision by the Eighth Circuit, the Court of Appeals acknowledged that a suit claiming that an advertiser materially misrepresented to the accredited certifying agent the facts related to the ingredients and/or manufacturing process that led to the agent’s certification of a product as organic would not be preempted by the OFPA.  However, where as here, a plaintiff’s state law claim is premised on a different determination of what is “organic” than the OFPA provides, the state law claim is preempted.

© 2018 Proskauer Rose LLP.

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About this Author

Lawrence I Weinstein, False Advertising and Trademark Copywright Law, Proskauer
Partner

Larry Weinstein is a Partner in Proskauer's Litigation Department. He is co-head of the firm’s Intellectual Property Litigation Group, and also co-head of the firm’s False Advertising & Trademark Practice. Larry is both a distinguished trial lawyer and counselor, whose practice covers a broad spectrum of intellectual property law, including Lanham Act false advertising and trademark cases, consumer class action cases, NAD and FTC proceedings, and trade secret and copyright litigations, as well as sports, art and other complex commercial cases.

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Julia Ansanelli, Litigation attorney  in New York, Proskauer Law firm
Associate

Julia Ansanelli earned her bachelor's degree from New York University and her J.D. from Touro Law Center, where she graduated as valedictorian of her division. During law school, she served as case note editor of the Touro Law Review and vice president of Touro's Latin American Law School Association. Julia also interned for the Honorable Magistrate Kathleen Tomlinson in the Eastern District of New York.

Practices

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