California Court Decides that the Organic Food Production Act Does Not Apply to Personal Care Products

October 10, 2013

By Riëtte van Laack

In May of 2012, Plaintiff Matthew Dronkers filed a complaint in the United States District Court for the Southern District of California, on behalf of himself and other class members against Kiss My Face, LLC (“KMF”) claiming that KMF’s marketing of personal care products labeled as “obsessively organic” was false and misleading.  According to Mr. Dronkers, consumers interpret the term “organic” as applied to personal care products to mean that the product “is derived from fruits, vegetables and other crops that are grown, products, handled, and processed according to strict guidelines.”  Among other things, these “guidelines” include a requirement that the personal care products “must contain no synthetic ingredients.”  The complaint alleged that KMF’s products did not satisfy these criteria.  Plaintiff acknowledged that (“regrettably”) the Organic Food Production Act (“OFPA”) and the National Organic Program’s (“NOP’s”) implementing regulations do not apply to personal care products, but alleges that KMF’s claims did not comply with those standards either.

Somewhat curiously, Plaintiff did not cite or appear to rely on the California Organic Products Act (“COPA”).  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 forth in the regulations by the NOP.  Under COPA, only personal care products with at least 70 percent organically produced ingredients may be labeled “organic.”  Plaintiff instead, appears to have relied on his own (more narrow) definition of “organic.”  Remarkably, this strategy seems to have worked.

KMF filed a motion to dismiss arguing express and implied conflict preemption because Plaintiff’s claims were (indirectly) premised on the labeling of the personal care products as organic when they did not comport with the requirements of the OFPA and the NOP regulations.  In the alternative, Defendant moved to dismiss the case under the primary jurisdiction doctrine and because of the Plaintiff’s failure to satisfy Federal Rule of Civil Procedure 9(b)

Judge Houston denied the motion to dismiss.  He held that the OFPA and NOP implementing regulations are for foods and nothing from Congress or USDA to date suggests that federal legislation should preempt state law when it comes to organic claims for personal care products.  Moreover, because there was no evidence that the USDA was considering whether the NOP regulations apply to personal care products, the primary jurisdiction doctrine was inapplicable.  The court further concluded that Plaintiff had met the requirements for the Rule 9(b) heightened pleading standard.  In doing so, the opinion does not address the requisite showing of “falsity” based on what Plaintiff seems to admit is his own definition of “organic.”  The complaint does not appear to allege that Defendant (or anyone else) knew or should have known of Plaintiff’s definition of “organic.”  In other contexts, federal courts, including the Ninth Circuit, have distinguished between false claims and claims that are not true.  See, e.g., Wang v. FMC Corp., 975 F.2d 1412, 1420-21 (9th Cir.1992); (“The phrase “known to be false”  . . . does not mean ‘scientifically untrue’; it means ‘a lie.’”).

In any event, the lawsuit seeking class-action status against Kiss My Face for false advertising will move forward.  As the lawsuit moves forward, we will be watching to see whether Plaintiff’s seemingly home-grown definition of organic remains viable.