Citizens Can Sue for Mislabeling

by Jason Cole, Research Associate at The Cornucopia Institute

Precedent set for new organic enforcement pathway

Late last year, the California Supreme Court found that citizens have the right to sue food marketers for mislabeling their products as “organic.” The ruling allows for a new pathway to enforce federal organic regulations in California, a job that was heretofore the province of the USDA, and specifically the National Organic Program (NOP).

Previously, consumers could only file a complaint with the USDA and wait for a response. Because the NOP does not make its enforcement actions public, The Cornucopia Institute had to file a Freedom of Information Act (FOIA) request to determine the scope of the NOP’s activities in this area. The results showed very limited enforcement actions.

For a period of two years (2012—2014), the NOP only levied 28 fines averaging $7,000 each (that, in a $39 billion industry). Most of these actions were taken against producers selling organic products without a certificate, or with a suspended or revoked certificate. None of them appeared to be based on improprieties discovered by certifiers.

The Cornucopia Institute has long been critical of the NOP’s handling of fraud allegations. In October of 2008, Cornucopia submitted a complaint against Shamrock Farms, an industrial-scale “organic” dairy located in Arizona. The NOP took over three years to conduct an investigation and propose a suspension. It then took another three years to rule on Shamrock’s appeal of that action. Their products are still being sold as “organic.”

In a similar case, Cornucopia submitted a complaint against another industrial dairy that received organic certification, Aurora Dairy of Colorado (private label milk for Walmart, Costco, Target, and others).

Aurora ultimately paid around $8 million in a settlement in a consumer lawsuit, but the USDA did not levy one cent in terms of a fine. Based on the new CA Supreme Court ruling, giving citizens more power to bring scofflaws to justice, fines could have been more significant.

More recently, complaints submitted by Cornucopia in 2015 against 14 industrial organic farm operations and their certifiers for failing to grant meaningful outdoor access to cows and chickens – complaints accompanied by photographic evidence – were initially rejected without so much as an investigation by the USDA.

Thanks to the California Supreme Court there is now reason to hope for a new chapter of organic enforcement – one led by citizens instead of the USDA.

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