The Second Circuit has affirmed the dismissal of a putative class action that alleged Abbott Laboratories Inc. falsely represented its Similac Advance Organic Infant Formula as organic, ruling the plaintiffs’ state-law claims are barred by the Organic Foods Production Act (OFPA). Marentette v. Abbott Labs. Inc., No. 17-0062 (2d Cir., entered March 23, 2018). The plaintiffs alleged that Abbott misled consumers because the product contained ingredients not permitted by the OFPA.

The appeals court asked the U.S. Department of Agriculture (USDA) to submit an amicus brief addressing (i) whether the certification process requires the certifying agent to review and approve the ingredients of the final product to be labeled organic and (ii) whether products made in accordance with a properly certified plan will necessarily comply with the OFPA. According to the decision, USDA stated that “certifying agents review and approve both the process and the ingredients of the final product to be labeled organic, but generally do not inspect or certify batches of products.” The agency also explained that “certification is intended to be coextensive with compliance, but that it may not be if a plan is improperly certified or if a producer changes the plan after certification.”

The court found that the plaintiffs’ position “necessarily undermines Congress’ purpose in enacting the OFPA, because it demands adjudication of a product’s organic status separate and apart from the scheme set out in the law . . . [the p]arents’ claims strike at the very heart of the OFPA certification process and are therefore preempted by it.”

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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.

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