In an opinion yesterday, Judge Román denied a motion to dismiss a class action accusing the makers of “Earth’s Best” branded foods of falsely labeling certain products as “organic.” The defendants argued the claims were preempted by the Organic Food Production Act (or, OFPA), which defines what foods can be labeled “organic,” and prohibits the sale of products labeled “organic” unless approved by a “certifying agent.” In an earlier case, the Eighth Circuit found similar claims preempted because (among other reasons) state law claims challenging “organic” labels would create the risk of “conflicting interpretations” and would “directly conflict with the role of the certifying agent.” Judge Román disagreed, finding that the risk of “divergent” views not enough to result in preemption:
[W]hile it is true that Congress also sought to establish “national standards” and facilitate interstate commerce, the Organic Claims do not present a “sharp” obstacle to the accomplishment of those objectives, because the Organic Claims are not premised on a “reasonable consumer” theory that diverges from the national organic standards. Rather, the suit seeks to enforce those national standards. The Court is mindful of the risk that, over time and across many lawsuits, different courts might interpret the same standards differently. But Congress in the OFPA (1) delegated certification decisions to certifying agents—of which there are “[n]early 100”—whose interpretations of organic standards surely must diverge to some extent, and (2) expressly assigned U.S. district courts an interpretive role, albeit through the lens of arbitrary-and-capricious review. The mere presence of a risk of judicial interpretive divergence cannot be repugnant to congressional objectives, because these provisions show that Congress contemplated some degree of divergence. In considering the instant claims, a court in any jurisdiction would be interpreting the same standards, with appropriate deference to published USDA regulations and interpretations. Nothing suggests that the divergence among courts will be so great as to create an “obstacle” to the establishment of national standards and facilitation of interstate commerce vis-à-vis the pre-OFPA landscape; Defendants have thus failed to carry their “heavy” burden of showing a conflict “so direct and positive that the two [laws] cannot be reconciled or consistently stand together.” If Plaintiffs were seeking to enforce a definition of “organic” based on something other than federal regulatory compliance, then this Court might find such a state cause of action to be in conflict with congressional objectives. But that is not the case here.