California Court Rejects 'Organic' Food Labeling Suit

, The Litigation Daily

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Scott Graham writes for The Recorder in San Francisco.

The California Court of Appeal just took a heap of food litigation off the plaintiff bar's table.

Rejecting a San Francisco federal court decision, California's Second District Court of Appeal in Los Angeles ruled Monday there is no private right of action under California's consumer protection laws to sue over food mislabeled as organic.

Although the U.S. and California government run parallel regulatory schemes, the federal Organic Foods Production Act of 1990 preempts private enforcement of the California Organic Products Act of 2003, Justice Richard Aldrich wrote for a three-judge panel.

A private action based on either the state or federal law "would frustrate the congressional purpose of exclusive federal and state government prosecution and erode the enforcement methods by which the [federal law] was designed to create a national organic standard," Justice Richard Aldrich wrote in Quesada v. Herb Thyme Farms.

The decision is a "game changer" for a booming area of litigation involving both food and cosmetics, said Morrison & Foerster partner William Stern. He is not involved in Quesada but represents clients in four similar cases. "It pretty much ends the idea that you can sue under California's organic labeling law," he said. Companies have paid out hundreds of thousands, if not millions, to settle such cases since the law took effect in 2003, Stern said.

Aldrich acknowledged Congress did not expressly preempt such lawsuits, and that the California Supreme Court in 2008 permitted consumer suits based on state food labeling laws that are identical to federal laws. But that case involved the federal Nutritional Labeling and Education Act, which states that it "shall not be construed to preempt any provision of state law, unless such provision is expressly preempted." There's no similar provision in the federal organic food law, according to Aldrich's opinion.

Suits over food mislabeling have been especially popular recently in federal court in San Francisco. U.S. District Judge Charles Breyer allowed one such case involving organic labeling, Jones v. ConAgra Foods, to go forward in 2012.

"We are not bound by federal district court decisions," Aldrich noted. "We also reject Jones v. ConAgra Foods Inc. on its merits."

Judges H. Walter Croskey and Patti Kitching concurred.

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