BOB NIEMANN: The Quesada v Herb Thyme Farms decision will have a ripple effect across the organic industry
First we approached Robert S. Niemann, partner at Keller and Heckman.
What legislative issues will be top of mind in 2016?
I think the Vermont GMO legislation will be sustained by the courts in 2016 and will be the tail that wags the dog. Manufacturers and distributors will have to decide if they want to conduct business in Vermont or take that state out of circulation... In California we have seen thousands of companies stumble across the decision to place a Prop 65 warning on products and pay the consequences for failing to do so. For now it looks like the Vermont statute would be enforced by the Attorney General, but it might be just a matter of time before consumers can file with private counsel.
Will the FDA probes into natural labeling mean fewer lawsuits?
The recent announcement that the FDA would be accepting comments on the use of ‘natural’ on labeling might get some of the courts to either stay or dismiss a case based on Primary Jurisdiction. However, the action by the FDA does not mean that there will be any changes to the current definition, or that the pendulum will swing either way with a new definition. Until some changes are made the definition stands and we will continue to see class actions brought where the word 'natural' is used where there is doubt about the truth.
Can you cite a case that could change the food litigation landscape?
The Quesada v Herb Thyme Farms decision by the California Supreme Court on December 3, 2015 is going to have a ripple effect across organic manufacturers and distributors, and there will likely be ‘organic’ class actions for companies that are not in compliance with the requirements. [The court said consumers could assert claims under California consumer protection statutes for intentionally mislabeling products as 'organic'.]
This opens up the right of consumers to bring private actions for fraud and other misleading claims. The organic standards, unlike the contested definition of ‘natural’ create more objective factors for review to determine compliance and the right to use the ‘organic’ labeling.
