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Amy E. Mersol-Barg is an associate in the firm's Energy and Commercial Litigation groups in the Washington, D.C. office. Her practice spans various industries, including renewable energy and health care. She represents domestic and multinational companies in regulatory and litigation matters, as well as in arbitrations involving contractual disputes.

On December 3, 2015 in a unanimous decision, the California Supreme Court ruled that California state law claims for harms arising out of allegedly false “organic” labeling were not preempted by the federal Organic Foods Production Act of 1990.  With that decision, the Court reversed the lower court’s dismissal of Plaintiffs’ claims on the pleadings.  The appellate court held that federal law impliedly preempted a consumer class action challenging whether Herb Thyme Farms, Inc. falsely labeled its herbs as “organic.”  Although one of the Defendant’s many herb farms was certified as organic,  it allegedly marketed and sold its herbs as “Fresh Organic” with the “USDA Organic” label on its package even though the product was a mix of conventional and organic herbs.

The California Supreme Court found that challenges to the truthfulness of organic labels under state law promotes–rather than conflicts with–the federal regime. The Organic Foods Act prescribes the farming methods that may be used to grow food marketed as organic and establishes state and federal organic certification schemes for organic producers.  It does not, however, prevent consumers from suing over the veracity of an organic label.  Thus, there is no express preemption of such claims based on state law. There is no implied preemption, moreover, because state law traditionally governs consumer protection from deceptive labeling.  The Court also reasoned that Congress could not have intended federal law to preempt suits such as the instant one because “[a] central purpose behind adopting a clear national definition of organic production was to permit consumers to rely on organic labels and curtail fraud.”  The Court reversed the lower court’s decision and remanded for further proceedings consistent with its opinion.