An attorney for plaintiffs who said they were duped into buying “organic” infant formula that actually contained synthetic ingredients told a federal appeals court on Wednesday that producer Abbott Laboratories lied to a third-party entity charged with certifying the product’s contents.
But Abbott, which produces Similac Advance Organic infant formulas, argues that U.S. District Judge Pamela Chen of the Eastern District of New York correctly granted a motion to dismiss the suit, which made claims under New York and California’s unfair trade practices statute, was pre-empted by the federal Organic Foods Production Act, or OFPA.
Plaintiffs Sara Marentette, Matthew O’Neil Nighswander and Ellen Steinlein allege that 26 of the 49 ingredients found in the formula are not allowed in foods carrying the “organic” label, which include ingredients that are “irradiated substances, synthetic compounds or produced from hazardous substances,” and thus was in violation of the OFPA.
The parties are at odds as to whether the challenged ingredients are included on the U.S. Department of Agriculture’s “national list” of synthetic ingredients that are allowed in organic food. Similac Organic was certified by third party Quality Assurance International, or QAI.
But Yvette Golan of The Golan Firm, who presented arguments to the U.S. Court of Appeals for the Second Circuit, told the three-judge panel that attorneys learned through limited discovery before Chen granted the motion to dismiss that Abbott did not properly inform QAI about all the ingredients contained in the formula.
“Somebody, somewhere, made a mistake,” Golan said, which Judge Rosemary Pooler called a “serious charge.”
In response to rapid-fire questions from the judges, Golan said that these allegations were not contained in complaints filed at the district level and that, even if the plaintiffs cannot overcome the federal pre-emption argument, Chen erred in not granting leave to the plaintiffs to file an amended complaint containing the new allegations.
In response to Golan’s statement that some ingredients weren’t disclosed to QAI, Judge Gerard Lynch noted that the ingredients are listed on the label for the product.
“They’re disclosed to your clients,” Lynch said, his voice rising. “They’re right there.”
In a brief rebuttal to Golan’s statements, Scott Glauberman, chairman of Winston & Strawn’s product liability practice, noted that Chen said before dismissing the plaintiffs’ second amended complaint that challenging the factual basis behind the certification of the product is “really not sufficient for Rule 11” of the Federal Rules of Civil Procedure.
Glauberman did not comment on Golan’s statements further after the hearing.
Chen relied on the U.S. Court of Appeals for the Eighth Circuit’s 2010 holding in Aurora Dairy Organic Milk and Sales Practices Litigation, 621 F.3d 781, which she said is the only case in which a circuit court has confronted the same issue as that posed in Marentette v. Abbott Laboratories, 15-cv-2837.
In Aurora, the Eighth Circuit found that plaintiffs’ state claims against organic-certified dairy producers were pre-empted by federal law.
Finding for the plaintiffs in Marentette, Glauberman argued, would undermine uniformity of standards for labeling of organic food nationwide.
“They’re seeking to overturn the federal finding that Abbott is in complete compliance with” the OFPA, Glauberman said.
But Pooler said that New York’s laws would impose “more enforcement” on labeling organic foods than the USDA, “which looks like a paper tiger here.”
“I do not believe this is conflict pre-emption,” Pooler said. “That is the only issue on which the district court opined.”
In addition to Golan, the plaintiffs were represented by Finkelstein Blankinship Frei-Pearson & Garber partner Todd Garber; and Kim Richman of the Brooklyn-based Richman Law Group.
Abbott’s defense team also included Winston & Strawn associate Shawn Gebhardt.
The appellate panel also included U.S. District Judge Brian Cogan of the Eastern District of New York, who sat on the panel by designation.