A consumer has filed a putative class action alleging that Bareburger Group misrepresents its restaurants as selling only organic food despite using some non-organic ingredients in its products. Rosenberg v. Bareburger Grp., No. 19-1634 (E.D.N.Y., filed March 22, 2019). The plaintiff and Bareburger were the subjects of a New York Times article in August 2018 that explored the use of the term "organic" in restaurant advertising. The complaint asserts that Bareburger features the term "organic" throughout its signage, menu descriptions and marketing but does not ensure that the products are fully organic. "Defendant's executives confirmed that approximately 75 to 80 percent of the burgers were organic, not 100 percent, contrary to the labels," the plaintiff alleges, citing the New York Times article. "Defendant's 'Organic' restaurants have countless non-organic ingredients including lamb and bison and mayonnaise and tomatoes—crucial condiments when it comes to dressing up a purportedly organic burger." For allegations…
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The U.S. Department of Agriculture (USDA) has announced that it will accept nominations for five vacancies on the National Organic Standards Board (NOSB). Each position on the board is categorized under the Organic Foods Production Act. USDA will accept nominations for: "One individual with expertise in areas of environmental protection and resource conservation"; "one individual who owns or operates an organic farming operation or employees of such individuals"; "one individual who owns or operates a retail establishment with significant trade in organic products or an employee of such individuals"; and "two individuals who own or operate an organic handling operation or employees of such individuals." The chosen candidates will serve on the NOSB from January 24, 2020, to January 23, 2025. Nominations will be accepted until May 20, 2019.
The Center for Food Safety (CFS) has filed a petition recommending that the U.S. Department of Agriculture (USDA) prohibit the use of hydroponic agriculture in the cultivation of organic food. "Hydroponic production systems are fundamentally different from organic production systems as defined by federal law—they do not promote soil health or conserve biodiversity," the petition states. "Organic certification of hydroponics thus misleads consumers, because these products are indistinguishable from truly organically produced products with the same label." CFS argues that organic production by definition must include soil, citing the Organic Foods Production Act and noting that the statute and the National Organic Program's final rule implementing it do not include the words "hydroponic" or "soilless." The petition urges USDA to amend existing regulations to expressly prohibit hydroponic systems in organic production and revoke existing organic certifications issued to hydroponic operations.
The National Organic Standards Board (NOSB) has announced a meeting to be held April 24-26, 2019, that will include a discussion and vote on recommendations for updates to U.S. organic standards. The deadline to submit written comments is April 4, 2019, with the same deadline applying to those who intend to provide oral comments at the meeting in person or via webinar.
Three Nebraska farmers have pleaded guilty to charges of fraud stemming from the sale of grain misrepresented as organic. According to a Department of Justice press release, the men "admitted to growing grain between 2010 and 2017 that was not organic. Each further admitted that they knew the grain was being marketed and sold as organic, even though it was not in fact organically grown. The charging documents allege that, during the 2010 to 2017 period, each of the three farmers received more than $2.5 million for grain marketed as organic." Each defendant faces a possible 20 years in prison and a $250,000 fine.
The Electronic Retailing Self-Regulation Program (ERSP) has determined that Green Chef Inc. cannot support some of its claims about organic food in its meal-kit deliveries, which it marketed as containing 90 percent or more organic ingredients. ERSP found that the use of the U.S. Department of Agriculture's organic seal "inaccurately communicated that Green Chef meal kits were entirely organic, or contained almost all organic ingredients." The board also found that Green Chef could not corroborate its claim that it delivered the most organic ingredients when compared to other meal-kit companies. Green Chef indicated that it would change its marketing and work with its certified-organic supplier to establish appropriate language.
A plaintiff has filed two putative class actions alleging the manufacturers of “organic salt" violate consumer-protection laws against deceptive advertising because salt is an inorganic mineral that “cannot be identified as organic” pursuant to the National Organic Program. Garcia v. HimalaSalt-Sustainable Sourcing, LLC, No. 18-7410 (C.D. Cal., filed August 23, 2018); Garcia v. Frontier Natural Prods. Coop., No. 18-7457 (C.D. Cal., filed August 24, 2018). In both complaints, the plaintiff alleges that she paid a premium for the products—HimalaSalt's Himalayan salt and Simply Organic's flavored salts—because she believed them to be "more healthful than regular salt." Claiming violations of California’s consumer-protection statutes, the plaintiff seeks class certification, injunctive relief, restitution, damages and attorney’s fees in both cases.
The New York Times has published an article exploring the use of the term "organic" to describe food sold in restaurants, which are not required to undergo the same certification process as farms and food companies. The U.S. Department of Agriculture does not certify restaurants and does not plan to change that policy, an agency spokesperson reportedly told the Times. Restaurants that claim to be organic can be certified by third-party organizations, but certification can require "meticulous record keeping, extensive staff training on organic rules, fees in the thousands of dollars and lengthy inspections that involve scrutiny of everything from produce invoices to cleaning materials."
The Cornucopia Institute has released "The Turkish Infiltration of the U.S. Organic Grain Market: How Failed Enforcement and Ineffective Regulations Made the U.S. Ripe for Fraud and Organized Crime," a report arguing that the U.S. Department of Agriculture (USDA) has failed to "curb the infiltration of questionable organic grain imports" into the U.S. food supply. The report alleges that shipments of grain have arrived from Turkey, Russia, Moldova and Kazakhstan that were purportedly sourced from countries that do not have sufficient organic acreage to produce the amount of imported organic grains. The report accompanies a Cornucopia letter urging Secretary of Agriculture Sonny Perdue to "implement protocols and procedures to require testing of any bulk shipment of 'organic' grain that meets minimum volume or monetary value thresholds and is presented for import at ports, docks, and border crossings of the United States." "We again urge the USDA to engage in emergency…
A California appeals court has affirmed the dismissal of a lawsuit alleging that infant formula was mislabeled because it contained synthetic ingredients, ruling that the plaintiff's state law claim was preempted by the Organic Foods Production Act (OFPA). Organic Consumers Assoc. v. Honest Co. Inc., No. B280836 (Cal. App. Ct., entered June 12, 2018). The advocacy group alleged that the formula contains synthetic ingredients not permitted in organic products under OFPA, thus violating the California Organic Products Act (COPA). "Association’s complaint does not allege that Honest is selling its premium infant formula without having gone through the organic certification process," the court found. "Nor are there any allegations of misconduct by Honest in obtaining or using its organic certification. Rather, the gravamen of Association’s single cause of action under the COPA is that Honest is labeling as organic infant formula that is not in fact organic." The court found this claim preempted by federal law. "If, as Association…
