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Quesada v. Herb Thyme Farms, Inc.

California Court of Appeal, Second District, Third Division

December 23, 2013

Michelle QUESADA, Plaintiff and Appellant,
HERB THYME FARMS, INC., Defendant and Respondent.


APPEAL from a judgment of the Superior Court of Los Angeles County, Carl West, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC436557).

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[166 Cal.Rptr.3d 348] Law Office of Raymond P. Boucher, Raymond P. Boucher; Whatley Kallas, Edith M. Kallas, Alan M. Mansfield; Kiesel Larson, Helen Zukin, Maria L. Weitz, Beverly Hills; Johnson & Johnson and Neville Johnson for Plaintiff and Appellant.

Greenberg Traurig, Mark D. Kemple, Los Angeles, and Angela L. Diesch, Sacramento, for Defendant and Respondent.



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In this case of first impression, we address whether the federal Organic Foods Production Act of 1990 (OFPA or the Act) (7 U.S.C. § 6501 et seq.),[1] which governs the labeling of agricultural products as " organic" and " USDA Organic," preempts state consumer lawsuits alleging violations of the Act or violations of California's federally-approved state organic program (SOP), which is codified as the California Organic Products Act of 2003 (COPA) (Food & Agr.Code, § 46000 et seq.; Health & Saf.Code, § 110810 et seq.). Given this state-federal regulatory scheme, the resolution of this issue requires us to consider what, if any impact, Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 72 Cal.Rptr.3d 112, 175 P.3d 1170 has on our preemption analysis.

[166 Cal.Rptr.3d 349] We conclude that in enacting the OFPA, Congress made clear its intention to preclude private enforcement through state consumer lawsuits in order to

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achieve its objective of establishing a national standard for the use of " organic" and " USDA Organic" in labeling agricultural products. Unlike Farm Raised Salmon Cases, supra, 42 Cal.4th 1077, 72 Cal.Rptr.3d 112, 175 P.3d 1170, where Congress did not intend to alter the status quo in which residents may choose to file unfair competition claims or other claims based on violations of identical state laws, in enacting the OFPA, Congress did intend to alter the status quo. Congress mandated federal approval and oversight of state organic programs to ensure consistent federal and state government enforcement for violations of the Act. COPA, California's federally-approved SOP, has a remedial scheme that does not include private enforcement. A state consumer lawsuit based on COPA violations, or violations of the OFPA, would frustrate the congressional purpose of exclusive federal and state government prosecution and erode the enforcement methods by which the Act was designed to create a national organic standard. Accordingly, this lawsuit poses a clear obstacle to the accomplishment of the congressional objectives in enacting the OFPA and so it is preempted. Therefore, we affirm the trial court's judgment dismissing this class and representative action filed by plaintiff Michelle Quesada against Herb Thyme Farms, Inc. (Herb Thyme).


Herb Thyme is a certified grower with federal approval to label its organically grown herbs as " USDA Organic." Herb Thyme allegedly mislabeled its product as " Fresh Organic" and used the " USDA Organic" graphic on its product packaging, when the contents contained a mix of organically grown herbs and conventionally grown herbs. Quesada alleges Herb Thyme " misrepresented the source, approval or certification of their non-organic fresh herb products," as " Fresh Organic" products.[2]

Quesada, on behalf of others similarly situated, filed a class and representative action against Herb Thyme. The second amended class action complaint (complaint) alleges causes of action for (1) unfair and deceptive trade practices in violation of the Consumers Legal Remedies Act (CLRA) ( Civ.Code, § 1750 et seq.); (2) violation of the false advertising law (Bus. & Prof.Code, § 17500 et seq.); (3) unlawful conduct in violation of the unfair competition law (UCL) (Bus. & Prof.Code, § 17200 et seq.); and (4) unfair and fraudulent conduct in violation of the UCL.[3] The laws alleged to be

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violated as a predicate for the " unlawful" prong of the UCL claim include provisions of the CLRA, and the false advertising law. [4] The complaint does not cite either the OFPA or COPA.

[166 Cal.Rptr.3d 350] Herb Thyme moved for judgment on the pleadings on two grounds— Quesada's claims are preempted by federal law, and the United States Department of Agriculture (USDA) has primary jurisdiction. Relying on the express language in various provisions of the OFPA, and a federal appellate case interpreting the OFPA, Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig. v. Aurora Organic Dairy (8th Cir.2010) 621 F.3d 781 ( Aurora Dairy ), Herb Thyme argued the state consumer law claims alleging noncompliance with organic labeling laws were expressly preempted because these claims implicated the certification process under the OFPA. Herb Thyme also argued these state consumer law claims were impliedly preempted because a resolution of this action would conflict with regulation and enforcement of the OFPA by the federal government. The trial court agreed with Herb Thyme's preemption analysis, granted the motion, and entered judgment of dismissal. Quesada timely appeals.

During the course of the briefing on appeal, Quesada changed positions and now contends this action is based solely on violations of COPA. The reply brief states: " Ms. Quesada is not enforcing federal regulations; she brings state law claims for organic labeling violations in the State of California based on the State's organic labeling laws. Such labeling in California is regulated by the California SOP, not the NOP...." [5] In asserting this new theory of liability, Quesada contends that Farm Raised Salmon Cases, supra, 42 Cal.4th 1077, 72 Cal.Rptr.3d 112, 175 P.3d 1170, is controlling as the California Supreme Court addressed federal preemption under a similar state-federal regulatory scheme.

After oral argument, this court requested the parties brief questions related to Quesada's new theory of liability, specifically, whether a state consumer lawsuit based upon violations of COPA is preempted. Although the trial court did not consider the preemption question under COPA, we address the

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preemption issue under both the state and federal regulatory scheme because preemption is purely a legal issue, which we review de novo. (See Farm Raised Salmon Cases,supra, 42 Cal.4th at pp. ...

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