A New York federal court has dismissed a lawsuit against Abbott Laboratories Inc. alleging the company’s Similac® Advance® infant formula is sold as organic but contains ingredients impermissible in organic foods under U.S. Department of Agriculture (USDA) regulations, finding the  claims preempted by the Organic Foods Production Act of 1990 (OPFA). Marentette v. Abbott Labs., No. 15-2837 (E.D.N.Y., order entered August 23, 2016).

Both parties acknowledged that the infant formula was certified organic by Quality Assurance International, an organization accredited by USDA to certify organics. The court considered and found persuasive an Eighth Circuit Court of Appeals decision holding that challenges to an accredited certifying agent’s decision were preempted by the OFPA while challenges to the underlying facts were not. Agreeing with the circuit court’s reasoning, the court “finds that such a challenge is preempted because ‘[t]o the extent state law permits outside parties, including consumers, to interfere with or second guess the certification process, the state law is an obstacle to the accomplishment of congressional objectives of the OFPA.’” Accordingly, the court granted Abbott Labs’ motion to dismiss the claims. Additional details about the complaint appear in Issue 566 of this Update.


Issue 615

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.