Federal Organic Foods Production Act Does Not Preempt State Claims that Are Unrelated to Organic Producer Certification Process- In re Aurora Dairy Corp. Organic Milk Mktg. and Sales Litig.1

Federal Organic Foods Production Act Does Not Preempt State Claims that Are Unrelated to Organic Producer Certification Process- In re Aurora Dairy Corp. Organic Milk Mktg. and Sales Litig.1 - The United States Court of Appeals for the Eighth Circuit held that a federal statute,2 which establishes uniform certification and accreditation rules for organic foods producers and certifying agents, preempts only those state consumer law claims that specifically challenge the federal organic foods certification process.3

Congress enacted the Organic Foods Production Act of 1990 (OFPA) in order "(1) to establish national standards governing the marketing of certain agricultural products as organically produced products; (2) to assure consumers that organically produced products meet a consistent standard; and (3) to facilitate interstate commerce in fresh and processed food that is organically produced."4 The OFPA specifies that "'a person may sell or label an agricultural product as organically produced only if such product is produced and handled in accordance with' the OFPA."5 It requires producers marketing agricultural products as "100% organic," "organic," or "made with organic" ingredients to obtain United States Department of Agriculture (USDA) certification or face a $10,000 fine.6

The National Organic Program (NOP),7 the USDA-drafted regulation implementing the OFPA, establishes the requirements for the certification of organic foods producers, as well as the process for accrediting the certifying agents who inspect the producers and make recommendations to the USDA.8 Defendant QAI, Inc. ("QAI") was the accredited certifying agent that certified defendant Aurora Dairy Corporation ("Aurora") to produce organic milk.9 Aurora subsequently sold its certified organic milk to defendant retailers Costco Wholesale Corp., Safeway, Inc., Target Corp., Wal-Mart Stores, Inc., and Wild Oats Markets. From 2003 onward, Aurora continuously held certifications issued by either QAI or the Colorado Department of Agriculture.10 In April 2007, the USDA proposed revoking Aurora's certification after it "identified willful violations of [the OFPA] and the regulations thereunder . . . . [I]ncluding multiple cases of using nonorganic cows to produce milk" and selling and representing nonorganic milk as organic.11 After Aurora entered into a consent decree addressing the USDA's concerns, however, the USDA declined to revoke Aurora's certification.12

Following this action by the USDA, nineteen plaintiffs filed class action lawsuits in federal district courts across the country, which the United States...