The Organic Consumers Association (OCA) and Beyond Pesticides have filed a complaint against the Sioux Honey Association alleging the company’s Sue Bee® honey products contain the herbicide glyphosate despite being marketed as “Pure” and “Natural.” Organic Consumers Assoc. v. Sioux Honey Assoc. Coop., No. 008012 (D.C. Super. Ct., filed November 1, 2016). The complaint acknowledges that the glyphosate “may be due to the application of glyphosate on crops by neighboring farms and unrelated to beekeeping activities” but argues that the labeling is inaccurate regardless. The plaintiff organizations seek an injunction enjoining the labeling and mandating a corrective advertising campaign as well as costs. “A consumer seeing the words ‘Pure,’ ‘100% Pure’ or ‘Natural’ on a honey product would reasonably expect that product to contain nothing other than honey,” OCA International Director Ronnie Cummins said in a November 1, 2016, press release. “Regardless of how these products came to be contaminated,…
Tag Archives organic
The Cornucopia Institute has filed a complaint with the U.S. Department of Agriculture “requesting an investigation into the organic certification of hydroponic operations in the U.S. that appear to conflict with the statutory language of the Organic Foods Production Act (OFPA) of 1990 and current federal regulations governing organic food production.” The organization argues that two companies, Wholesum Harvest Family Farms and Driscoll’s, sell hydroponically raised produce as certified organic despite failing to meet federal standards on the contents of their soil, which allegedly include peat moss, coconut cuir and hydrolyzed soy fertilizers made from genetically modified soybeans. “Hydroponic and container systems rely on liquid fertilizers developed from conventional crops or waste products,” said a Cornucopia Institute farm policy analyst in a November 1, 2016, press release. “Suggesting that they should qualify for organic labeling is a specious argument.” Issue 621
The U.S. Department of Agriculture’s Agricultural Marketing Service (AMS) and the National Service for Animal and Plant Health, Food Safety and Quality of Mexico (SENASICA) have announced a joint Organic Compliance Committee to “ensure the integrity of organic products trade between the United States and Mexico.” With implementation of Mexico’s organic regulations slated for 2017, the two countries agreed to form a committee to achieve “equivalency in organic production and trade,” as well as enhance enforcement controls on organic products. According to an October 19, 2016, press release, the committee will “establish requirements for the use of import certificates in both countries within six months to provide verification of each shipment of organic products between the United States and Mexico.” Under the new arrangement, the committee will sample organic products for chemical residues, share the results with AMS and SENASICA, and “engage with certifiers operating in Mexico by conducting listening…
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has updated its guidelines on the documentation needed to support animal-raising labeling claims, which include “Raised Without Antibiotics,” “Organic,” “Grass-Fed,” “Free-Range” and “Raised with the use of hormones.” Among other things, the agency requires the following information to support such claims: (i) “a detailed written description explaining the controls used for ensuring that the raising claim is valid from birth to harvest or the period of raising being referenced by the claim”; (ii) “a signed and dated document describing how the animals are raised (e.g., vegetarian-fed, raised without antibiotics, grass-fed), to support that the specific claim made is truthful and not misleading”; (iii) “a written description of the product-tracing and segregation mechanism from time of slaughter or further processing through packaging and wholesale or retail distribution”; (iv) “a written description for the identification, control, and segregation of non-conforming animals…
Shook Partner Frank Cruz-Alvarez and Associate Ravika Rameshwar have authored an article for the Washington Legal Foundation’s Legal Pulse discussing a New York federal court’s dismissal of a class action centered on infant formula marketed as organic. The complaint alleged that Abbott Laboratories, Inc. represented its Similac® Advance® as organic despite containing ingredients prohibited in organic products by the U.S. Department of Agriculture (USDA). Cruz-Alvarez and Rameshwar provide an overview of the case and detail the relevant provisions of the Organic Foods Production Act of 1990, which establishes that a product can be labeled “organic” if a USDA-accredited agency certifies it as such. The court compared the infant formula allegations to a U.S. Court of Appeals for the Eighth Circuit case challenging the organic label of milk and reached an analogous conclusion: the state laws supporting the complaint challenged the federal law’s certification determination and were thus preempted. Accordingly, the…
A California federal court has denied the U.S. Department of Agriculture’s (USDA’s) motion to dismiss a lawsuit brought by several activist groups challenging aspects of the Organic Food Production Act’s sunset provision, which governs when substances are removed from the National List. Ctr. for Food Safety v. Vilsack, No. 15-1590 (N.D. Cal., order entered September 8, 2016). The plaintiffs objected to how USDA changed the process to remove a substance from the List, which documents permitted synthetic substances and prohibited non-synthetic substances in the production of organic food. Details about the complaint appear in Issue 561 of this Update. The court first determined that the plaintiff groups had standing to sue, then considered whether it had subject matter jurisdiction. USDA argued the sunset notice changes were not part of a final agency action, but the court determined the question of jurisdiction and the merits of the action were so intertwined…
A consumer has filed a putative class action alleging that EN-R-G Foods’ Honey Stinger Gluten Free Organic Maple Waffles do not contain maple syrup as implied by the product’s name and packaging. Johnson v. EN-R-G Foods, No. 6258 (C.D. Cal., filed August 19, 2016). The waffle package features “a prominent image of a maple leaf and maple syrup splashed on the waffle,” leading consumers to believe that the product ingredients include maple syrup, the plaintiff asserts. For allegations of fraudulent inducement, unjust enrichment and violations of California law, he seeks class certification, damages, an injunction and attorney’s fees. Issue 615
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…
Two lawsuits challenging the inclusion of “evaporated cane juice” (ECJ) on ingredient lists will continue in light of the U.S. Food and Drug Administration’s (FDA) July 2016 nonbinding guidance recommending that “sugar” be listed instead. A California federal court refused to dismiss a lawsuit against Lifeway Foods alleging its kefir product packaging misled consumers into believing it contained no added sugar by including ECJ in the ingredients list. Figy v. Lifeway Foods Inc., No. 13-4828 (N.D. Cal., order entered August 16, 2016). The court found the plaintiff’s claims to be properly pleaded and was not persuaded by Lifeway’s argument that the expiration dates on the labels attached to the complaint suggested that the products were purchased after the plaintiff knew what ECJ is because the labels were merely examples of the product packaging rather than the specific products the plaintiff purchased. Details about Lifeway’s motion to the court arguing the…
The U.S. Department of Agriculture’s National Organic Standards Board (NOSB) has removed five non-organic nonagricultural substances—egg white lysozyme, cyclohexylamine, diethylaminoethanol, octadecylamine, and tetrasodium pyrophosphate—from the National List of Allowed and Prohibited Substances governing the use of synthetic and non-synthetic substances in organic food production and handling. After determining that these substances “are no longer necessary or essential for organic handling” based on public comments and supporting documents, NOSB decided to let their use exemptions expire on September 12, 2016. According to NOSB, suitable alternatives or new processing and handling practices have eliminated the need for (i) egg white lysozyme as a “processing aid/preservative for controlling bacteria that survived the pasteurization process of milk that is used for cheese manufacture”; (ii) cyclohexylamine, diethylaminoethanol and octadecylamine “for use only as a boiler water additive for packaging sterilization”; and (iii) tetrasodium pyrophosphate “for use only in meat analog products.” See Federal Register, August…
