Happy New Year! I hope everyone enjoyed the holiday season. There are a few recent developments of interest and I'm back to blogging this week.
In Quesada v. Herb Thyme Farms, Inc., ___ Cal.App.4th ___ (Dec. 23, 2013), the plaintiff alleged that the defendant, a grower of fresh herbs, violated the UCL, FAL and CLRA by selling packages of herbs labeled "Fresh Organic" and "USDA Organic" when the packages actually "contained a mix of organically grown herbs and conventionally grown herbs." Slip op. at 3. The defendant was a "certified grower with federal approval to label its organically grown herbs as 'USDA Organic.'" Id.
The Court of Appeal (Second Appellate District, Division Three) held that the claims were impliedly (but not expressly) preempted by the federal Organic Foods Production Act of 1990 (7 U.S.C. § 6501 et seq.), in particular "Congress’s mandate precluding private enforcement of the national organic standards to ensure national consistency in the production and labeling of agricultural products as 'organic.'" Id. at 18.
This is an interesting decision and it's hard to say what its broader impact might be on lawsuits involving false representations that foods are "organic." The existence of such misrepresentations by unscrupulous sellers factored heavily into Justice Werdegar's reasoning in Kwikset:
The observant Jew who purchases food represented to be, but not in fact, kosher; the Muslim who purchases food represented to be, but not in fact, halal; the parent who purchases food for his or her child represented to be, but not in fact, organic, has in each instance not received the benefit of his or her bargain.
Kwikset Corp. v. Superior Court (Benson), 51 Cal.4th 310, 332 (2011) (emphasis added). I have a very clear memory of Justice Werdegar mentioning "organically grown" foods during the oral argument in Kwikset.
Of course, Kwikset did not involve either foodstuffs or preemption. And Quesada's reasoning appears to apply only if the defendant is a federally-certified grower:
With this state-federal statutory framework in mind, we turn to the preemption question, that is, whether Quesada’s state consumer lawsuit against a certified organic grower based on mislabeling its product as “organic,” in violation of the OFPA or COPA is preempted.
Slip op. at 7-8 (emphasis added).