California Labeling Requirements for Organic Cosmetics Not Preempted

August 14, 2012

By Riëtte van Laack

The Organic Food Products Act of 1990 (“OFPA”) established national standards for the marketing of certain agricultural products marketed as organically produced.  It directed USDA to issue regulations specifying the requirements for certification and labeling of organic agricultural products.  In promulgating the NOP regulations, the USDA decided that the labeling of cosmetics was outside the scope of the OFPA.  Although the USDA’s position appears to have changed over time, USDA has not amended its NOP regulations to apply to organic claims for cosmetics.

The California Organic Products Act of 2003 (“COPA”) prohibits any product handled, processed, sold, advertised, represented or offered for sale in California from being sold as organic unless it is labeled with terminology similar to terminology set for in the regulations by the National Organic Program (“NOP”). COPA specifically applies to cosmetic products sold or labeled as organic or made with organic.  Under COPA, cosmetics with organic claims must contain at least 70 percent organically produced ingredients.  Unlike OFPA, which may be enforced only by USDA, COPA is enforceable by any person who may bring an action for injunctive relief.

In 2011, R. Brown et al. filed a complaint against The Hain Celestial Group, Inc. (“Hain”), claiming that Hain sold organic cosmetics in violation of COPA because these cosmetics did not contain 70% or more organic ingredients.  Hain filed a motion to dismiss arguing that COPA’s requirements for cosmetics are expressly preempted by the federal OFPA.

Judge Beeler of the U.S. District Court for the Northern District of California disagreed, however, in a decision from earlier this month.  Although the title of the OFPA may suggest otherwise, the Court concluded that OFPA covers cosmetics that use agricultural products.  However, the court held that OFPA only expressly preempts a narrow set of state certification requirements and does not bar state law labeling provisions that do not conflict with OFPA’s and NOP’s provisions.  In the alternative, even if (contrary to the Court’s interpretation) OFPA does not extend to agricultural cosmetics, USDA has approved COPA.  In either case, COPA’s provisions regarding organic claims for cosmetics are not preempted.  Therefore, the Court denied the Hain’s motion to dismiss.