Birdsong v. Nurture, Inc.

• Decision Date: 28 September 2017
• Docket Number: 16-CV-4435 (RRM) (PK)
• Citation: 275 F.Supp.3d 384
• Parties: Sarah BIRDSONG, on behalf of herself and all others similarly situated, Plaintiff, v. NURTURE, INC. d/b/a Happy Family, Defendant.
• Court: U.S. District Court — Eastern District of New York

275 F.Supp.3d 384

Sarah BIRDSONG, on behalf of herself and all others similarly situated, Plaintiff,

v.NURTURE, INC. d/b/a Happy Family, Defendant.

16-CV-4435 (RRM) (PK)

United States District Court, E.D. New York.

Signed September 28, 2017

Yvette Golan, The Golan Firm, Washington, DC, Adrienne McEntee, Terrell Marshall Law Group PLLC, Beth E. Terrell, Terrell Marshall Daudt & Willie PLLC, Seattle, WA, Todd Seth Garber, Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, White Plains, NY, Kim Richman, The Richman Law Group, Brooklyn, NY, for Plaintiff.

Edward P. Boyle, Venable LLP, New York, NY, Angel Antonio Garganta, Venable LLP, San Francisco, CA, Robert Leslie Meyerhoff, Venable LLP, Los Angeles, CA, for Defendant.

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, United States District Judge.

Defendant Nurture, Inc. ("Nurture") sells infant and baby food products that are marketed, labeled, and sold as "Organic." Sarah Birdsong, on behalf of herself and all others similarly situated, brings this putative class action against Nurture, alleging that Nurture misled consumers about the ingredients of its Happy Family brand products (the "Products"). Specifically, Birdsong alleges that the packaging for these products contains the representation "Organic" when in fact the Products contain ingredients that the United States Department of Agriculture ("USDA") prohibits in organic products. Nurture moves to dismiss this entire action claiming that, inter alia , Birdsong's claims are preempted by the Organic Foods Production Act of 1990, U.S.C. §§ 6501–6523 (the "OFPA"), and that Birdsong lacks standing to seek injunctive relief. In the alternative, Nurture argues that this case should be stayed under the doctrine of primary jurisdiction. Finding that Birdsong's claims are preempted, the Court grants Nurture's motion to dismiss the complaint in its entirety.

BACKGROUND¹

Birdsong alleges that, in 2015, she purchased a variety of Happy Family brand products through various channels, such as C Town, Met Foods, and Diapers.com. (Compl. (Doc. No. 1) at ¶ 19.) Birdsong claims that her purchases included at least the following products: HappyBaby Probiotic Baby Cereal, HappyBaby Superfood Puffs, HappyTot Greek Yogurt, HappySqueeze Greek Yogurt, and HappyTot Plus [Pouch]. (Id. )² In addition to containing the word "Organic," the Products also display the following seal:³

Birdsong asserts that she purchased the Products after seeing, and in reliance on, the "Organic" representation on the Products' label, and because of this representation, was led to believe that the Products were organic. (Id. ) Birdsong contends that the Products are not organic as defined under federal law because they contain certain prohibited synthetic ingredients. (See id. at ¶¶ 42–45.)⁴ Birdsong further claims that had she known that the Products were not "organic," she would not have purchased them. (Id. at ¶ 22.) However, she "would consider" purchasing the Products in the future if the Products were reformulated so as to make the "Organic" representation truthful. (Id. at ¶ 24.)

Birdsong alleges that Nurture is liable under N.Y. Gen. Bus. Law §§ 349 – 350 and the common law of New York for breach of express warranty and unjust enrichment. (See id. at ¶¶ 89–126.) All of these claims are based on the alleged false labeling of the Products as "Organic." Birdsong concedes that the Products have been certified "Organic" by a USDA-accredited agent. (11/3/16 Tr. (Doc. No. 19-1) at 22:13.) Birdsong does not allege that Nurture fraudulently deceived the certifying agent or intentionally substituted prohibited ingredients subsequent to the certification. Rather, Birdsong alleges that, notwithstanding their certification, the Products mislead consumers because they contain synthetic ingredients that are allegedly prohibited under the OFPA. Nurture moves to dismiss Birdsong's claims in their entirety.

STANDARD OF REVIEW

In order to withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must contain facts sufficient " 'to state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); Hayden v. Paterson , 594 F.3d 150, 161 (2d Cir. 2010). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ. , 631 F.3d 57, 63 (2d Cir. 2011) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). The Court assumes the truth of the facts alleged, and draws all reasonable inferences in the nonmovant's favor. See Harris v. Mills , 572 F.3d 66, 71 (2d Cir. 2009). A complaint need not contain "detailed factual allegations," but it must contain factual allegations that "raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. Where a party asserts a federal preemption defense, "[a] district court may grant a motion to dismiss based on federal preemption, if the defense can easily be determined from the pleadings." Aaronson v. Am. Med. Sys., Inc. , No. 09-CV-2487 (NGG), 2010 WL 3603618, at *1 (E.D.N.Y. Sept. 7, 2010) (internal citation and quotation marks omitted); see also Farash v. Cont'l Airlines, Inc. , 574 F.Supp.2d 356, 362–63 (S.D.N.Y. 2008), aff'd, 337 Fed.Appx. 7 (2d Cir. 2009).

DISCUSSION

I. Federal Preemption of State Law Claims

a. Conflict Preemption

Nurture argues that Birdsong's state law claims pose an obstacle to the achievement of the OFPA's objectives and thus are preempted by federal law. Under the Supremacy Clause of the United States Constitution, "state laws that conflict with federal law are without effect" and are preempted. Altria Grp., Inc. v. Good , 555 U.S. 70, 76, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008). In interpreting the presence and scope of preemption, a court starts with the "assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Wyeth v. Levine , 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) ; see Gen. Motors Corp. v. Abrams , 897 F.2d 34, 41–42 (2d Cir. 1990) ("[C]onsumer protection law is a field traditionally regulated by the states."). That said, "[t]he key to the preemption inquiry is the intent of Congress."

New York SMSA Ltd. P'ship v. Town of Clarkstown , 612 F.3d 97, 104 (2d Cir. 2010). Congress may indicate its intent to preempt state law explicitly, through a federal statute's express language, or implicitly, through the scope, structure, and purpose of the federal law. Altria , 555 U.S. at 76, 129 S.Ct. 538 (internal citation omitted). Nurture limits its argument to conflict preemption—specifically, obstacle preemption—which applies where state law "conflicts with federal law such that ... the [state] law is an obstacle to the achievement of federal objectives." Town of Clarkstown , 612 F.3d at 104 (internal citation omitted).

A brief overview of the OFPA and its regulatory history and scheme is warranted.

b. The Organic Foods Production Act

The OFPA establishes uniform national standards for the sale and labeling of organically produced agricultural products, and creates a federal certification program through which agricultural producers may become certified to sell and label products as "Organic." When it created the OFPA, Congress noted that the organic food trade was being "hampered by a lack of consistent standards for production." S. Rep. No. 101-357 (1990). The legislative history reflects the concern at the time that "the differing State laws have [ ] led to consumer confusion and troubled interstate commerce." Id. In such circumstances, Congress found that "[e]ven the most sophisticated organic consumer finds it difficult to know, with certainty, what the term 'organic' really means." Id. With that in mind, Congress articulated three main objectives in passing the OFPA: "(1) to establish national standards governing the marketing of certain agricultural products as organically produced products; (2) to assure consumers that organically produced products meet a consistent standard; and (3) to facilitate interstate commerce in fresh and processed food that is organically produced." 7 U.S.C. § 6501. To carry out these objectives, the OFPA empowers the Secretary of Agriculture (the "Secretary") to "establish an organic certification program for producers and handlers of agricultural products that have been produced using organic methods." 7 U.S.C. § 6503(a). Pursuant to the OFPA, the USDA adopted an extensive set of implementing regulations, known as the National Organic Program (the "NOP"), defining which agricultural products qualify as "Organic." See 7 C.F.R. §§ 205.1 – 205.699. Thus, the OFPA effectively federalizes the term "Organic"—an agricultural product is, and may be labeled as, organic if and only if it has been produced in accordance with federally approved standards for what that term is to mean.

In order to be sold or labeled as "Organic" under the OFPA, a product must:

(1) have been produced and handled without the use of synthetic chemicals, except as otherwise provided in this chapter;

(2) except as otherwise provided in this chapter and excluding livestock, not be produced on land to which any prohibited substances, including synthetic chemicals, have been applied during the 3 years immediately preceding the harvest of the agricultural products; and

(3) be produced and handled in compliance with an organic plan agreed to by the producer and handler of such product and the certifying agent.

7 U.S.C. § 6504. The OFPA empowers the Secretary to "establish a National List of approved and prohibited substances that shall be included in the standards for the organic production and handling established under [the OFPA] in order for such products to be sold or...