OCA sues Hain Celestial, Honest Co, over organic labels; both insist they 'fully comply' with USDA standards
In a complaint vs Hain Celestial, filed in the District of Columbia, the OCA alleges that multiple Earth’s Best ‘organic’ products contain nucleotides, taurine, l-carnitine, ascorbyl palmitate, beta-carotene (”in its synthetic form”) and lutein; ingredients which the OCA claims were specifically rejected for use in organic infant formula by the National Organic Standards Board (NOSB).
They also contain other ingredients (including sodium selenite and choline chloride, which the OCA notes is “not the same substance as the nutrient choline”), that are not currently allowed in organic products (click HERE), alleges the OCA, which argues that Hain is violating the District of Columbia’s Consumer Protection Procedures Act.
In the complaint against The Honest Co, filed in California, the OCA alleges that it is falsely representing its premium infant formula as organic, although it contains 11 substances the OCA claims are prohibited by federal law from organic foods, including sodium selenite, taurine, and cholecalciferol (which it claims is irradiated - and therefore not permitted in organic products).
“The National List specifies which nonagricultural ingredient may be added to organic products… The list is highly specific, allowing no leeway for interpretation,” adds the OCA, a non-profit consumer advocacy group based in Minnesota.
Hain Celestial: All the ingredients named in the lawsuit are approved for use today in organic infant formula
The Honest Co - a fast-growing L.A-based company co-founded by actress Jessica Alba in 2011 - told us it was confident it would prevail: "Our Organic Infant Formula is cleared by the FDA and meets all safety and nutritional standards. It is also certified USDA Organic by an independent third party, in strict accordance with the National Organic Program. We are confident this lawsuit will be dismissed."
Hain Celestial said it was also confident the suit would be dismissed: “Earth’s Best Organic infant formulas fully comply with the USDA’s National Organic Program standards. An independent organic certifier, acting as an agent for the USDA, has certified that the formulas qualify as organic under federal law.
“Contrary to OCA’s allegations, all the ingredients named in the lawsuit are approved for use today in organic infant formulas, and we are therefore confident that the court will dismiss this lawsuit.”
What is organic?
100% ORGANIC*: All ingredients and processing aids must be certified organic.
ORGANIC*: All ingredients must be certified organic unless specifically allowed per the National List. Products can’t exceed a combined total of 5% of allowed nonorganic content (excluding salt and water): Non-agricultural ingredients are prohibited unless they are on the 'allowed' list (eg. baking soda, citric acid, enzymes).
If an organic ingredient isn’t commercially available in the appropriate form, quality, or quantity to replace its use and is listed HERE, the non-organic form may be used (eg. carrot juice color, fish oil).
*Products must be overseen by a certifying agent.
Source: USDA''s agricultural marketing service (click HERE).
‘The allegations are very specific so someone is wrong here’
On the face of it, the cases would appear to be fairly clear cut (are the ingredients in question permitted for use in organic foods or not?), said David Biderman, a partner at law firm Perkins Coie: “The allegations are very specific, so someone is wrong here.”
Indeed, such lawsuits are fairly unusual, he observed, precisely “because the organic regulations are very specific… You either comply or don’t comply."
The USDA organic regulations, he said, "do allow the use of the term ‘organic’ (versus ‘100% organic’ ) for products that contain no more than 5% of ‘allowed non-organic content'... [see box above] but I don’t see all these ingredients on the [permitted non-organic content] list…”
OCA associate director Katherine Paul also stressed that there are strict rules governing what is permitted in that 5% (click HERE).
She claimed: “The ingredients listed in the complaints are prohibited in any amount [in foods labeled 'organic'].”
Attorney: Organic regulations are very specific
Although the OCA lawsuits focus on alleged violations of the organic standards, added Biderman, a recent judgment from the California Supreme Court in the Quesada v. Herb Thyme Farms case (the court said consumers could assert claims under California consumer protection statutes for intentionally mislabeling products as 'organic') was worth mentioning.
He added: “The court ruled that the organic regulations did not pre-empt a consumer’s claims that products were not organic, deciding that the regulations were only a floor, so at least according to the California Supreme Court, even compliance with the organic regulations would not prevent such a suit.
“But here the plaintiff [OCA] is not relying on that doctrine, but alleging a specific regulatory violation.”
