California Supreme Court Poised to Rule in Fight for the Integrity of Organic Food Labeling
By Aidan O’Shea
& Leslie Brueckner
The principle that you should get what you pay for is central to consumer rights in America. When someone chooses to pay more for food marked as “100 percent Organic,” they should be able to expect that they’re buying food that actually is organic. That’s not just a consumer advocate’s concern, it matters for public health as well.
That’s what makes the arguments of the defendant in Quesada v. Herb Thyme Farms, Inc. so frightening. The plaintiffs in this class action are customers who bought herbs from Herb Thyme, Inc. that were labeled as “100 percent Organic.” The suit alleges that, in fact, Herb Thyme secretly mixes its organic herbs with herbs grown on one of its conventional farms, and then labels the packages as “100 percent Organic.” Consumers end up paying a premium for “organic” herbs that aren’t. The lawsuit seeks to hold Herb Thyme liable under California’s consumer protection statutes for lying to consumers about the contents of its product.
But Herb Thyme is claiming that the mere fact that the federal government regulates some aspects of organic farming wipes out—or “preempts”—the consumers’ right to sue. Even though the federal law in question—the Organic Food Production Act — establishes certification requirements for organic farms, and doesn’t address labeling at all, Herb Thyme is arguing that OFPA “preempts” California’s consumer protection laws. The trial court agreed, and a California Court of Appeal upheld that ruling in 2013.
A team led by Maria Weitz of Boucher LLP, with co-counsel Public Justice Foundation board member Raymond Boucher, also of Boucher LLP, Leslie Brueckner of Public Justice, Public Justice Foundation board member Neville Johnson of Johnson & Johnson LLP, and Alan M. Mansfield of Whatley Kallas, LLC, are appealing to the California Supreme Court.
“Without lawsuits like this one,” write the plaintiffs, “consumers would have no recourse against unscrupulous producers who lie about the contents of their allegedly organic products. This would inevitably erode consumer confidence in the organic marketplace, which is exactly what Congress sought to prevent when passing OFPA in the first place.”
Herb Thyme’s strategy, invoking a federal law that supposedly wipes out consumers’ rights to sue under state law, has been a favorite one of Corporate America’s for decades. The doctrine of federal preemption strips victims of unsafe products or deceptive practices of their ability to seek any compensation for their injuries. This is exactly what happened to the inaugural recipient of Public Justice’s Illuminating Injustice Award, Karen Bartlett, who was blinded and burned two-thirds of her body as a result of taking the generic version of a prescription drug that lacked a proper warning label. She won a $21 million verdict from the drug company, only to have the U.S. Supreme Court wipe out the award in 2013 because of federal preemption.
“Federal preemption has stripped so many of their right to a day in court. If the defendant in Quesada prevails, corporations will have new avenues open to them to cheat with impunity,” said Public Justice Executive Director Paul Bland.
This case also has implications for Public Justice’s Food Safety and Health Project, said Public Justice Senior Attorney Leslie Brueckner.
“We are fighting to hold corporations accountable for the manufacture, distribution, and marketing of food that endangers consumers’ safety, health, and nutrition. If Herb Thyme prevails, not only will the victims of Herb Thyme’s fraud not get their day in court, but it will dramatically undermine consumers’ confidence in supporting healthier, more sustainable food production.”