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Is it organic, or isn’t it? That question has triggered a storm of federal class actions and consumer fraud suits against Boulder, Colo.-based Aurora Dairy Corp. and some of the largest retailers in the nation. Federal class actions against Costco Wholesale Corp., Safeway Inc., Target Corp., Wal-Mart Stores Inc. and Whole Foods Market Inc. � including one that also makes claims against Aurora � were filed in late November and December in California, Colorado, Minnesota and Washington state. Those claims include violations of various state consumer protection laws, violations of California’s business and professions code, breach of express and implied warranty, unjust enrichment and negligence. The suits against retailers allege that consumers paid premium prices for milk that the stores bought from Aurora and repackaged under the stores’ private labels as organic milk. Agricultural products seeking the U.S. Department of Agriculture (USDA) organic seal must contain at least 95% organically produced ingredients � or those without certain prohibited synthetic substances such as prohibited fertilizers and pesticides � not counting the products’ water and salt content. Any nonorganic ingredients must come from an approved list. The rules also outline standards for animals raised in an organic operation, including food and living conditions. An organic ‘duty’ The suits against the retailers follow nine federal class actions against Aurora in October and November in California, Colorado, Florida, Missouri and New York. A California Superior Court class action is also pending. The cases against Aurora make the same set of claims, with some also including violations of state trade practices laws, California’s false advertising law and its unfair competition law under the state’s business and professions code. Retailers selling their own products have a responsibility to consumers to ensure that what they’re selling is actually in the product, said William Riley, a plaintiffs’ lawyer in the Minnesota case against Target. Hudspeth v. Target Corp., No. 07-4755 (D. Minn.). “Target has a duty to make sure that it is, in fact, organic milk,” said Riley of Indianapolis’s Price Waicukauski & Riley. In a recent statement, Target said the lawsuit is “inconsistent” with the U.S. Department of Agriculture’s review and confirmation of Aurora’s organic certification. “It is disappointing that these types of lawsuits are attempting to override the USDA and regulate the organic industry and retailers with their own beliefs of what constitutes an organic product,” said Target’s statement. Whole Foods declined to comment and Costco, Safeway and Wal-Mart did not return calls seeking comment. A motion is pending by plaintiffs’ lawyers in one of the Colorado cases to transfer the Aurora cases to a multidistrict litigation panel. Freyre v. Aurora Dairy Corp., No. 07-02183 (D. Colo.). The Aurora cases sprang from a USDA investigation of its consent agreement with the company, said Gary Cox of Lane, Alton & Horst in Columbus, Ohio, a lawyer for farm policy research group Cornucopia Institute. Cox said Cornucopia pressed the USDA to investigate Aurora for a couple of years. Cox filed one of the early cases against Aurora in Colorado after the consent agreement. Still v. Aurora Dairy Corp., No. 07-2188 (D. Colo.). In August, the government declined to renew organic certification of one of Aurora’s facilities and found “inconsistencies” between national regulations and the company’s operating procedures. To correct the problems, the USDA required Aurora to remove certain cows from its herd, stop certifying certain milk as organic, and submit new organic operations plans for two facilities. Aurora’s lawyers at Latham & Watkins referred calls to the company. Aurora spokeswoman Sonja Tuitele said the consent agreement confirms that Aurora’s organic certifications have always been valid. Tuitele also said the suits against Aurora and the retailers are without merit. “[The retail suits] are the latest in the series of copycat lawsuits which have been inspired by the false claims of activist groups who for several years have been engaged in a smear campaign against large-scale organic producers,” Tuitele said.

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