Judge Denies Cosmetics Company's Attempt to Dismiss Organic Label Lawsuit

On Thursday, U.S. District Judge John A. Houston denied the cosmetics brand Kiss My Face’s motion to dismiss a class action lawsuit filed over the company’s organic product line. In May 2012, Matthew Dronkers filed a suit claiming that Kiss My Face falsely advertised its products by labeling them “obsessively organic.”

The court finds the plaintiff’s claims are not expressly preempted by the OFPA.

In an attempt to dismiss the suit, Kiss My Face argued that Dronkers’ claim was preempted by the federal Organic Foods Production Act (OFPA). According to the company, by attempting to enforce the labeling requirements as outlined by the US Department of Agriculture’s National Organic Program (NOP), Dronkers is taking action prohibited by the OFPA.

However, the Judge disagreed: “The ordinary meaning of ‘human consumption’ includes food but does not include cosmetic products. Only defendant’s inflated definition of agricultural products attempts to clothe cosmetics within the rubric of OFPA … As such, the court finds the plaintiff’s claims are not expressly preempted by the OFPA.” In addition, he rejected the company’s argument that Dronkers’ claims failed due to “implied conflict preemption.”

In another effort to dismiss the suit, Kiss My Face argued that by letting the suit stand, a conflicting set of standards would be imposed. The company argued that the USDA’s National Organic Standards Board recommended NOP standards also cover personal care products, and in 2008, even the USDA – an enforcer of organic standards - changed its position to permit cosmetic and personal care products made with agricultural ingredients to be certified under NOP regulations. However, Judge Houston noted that the company’s products had not yet been formally subjected to these organic standards.

Kiss My Face had been placed under “organic” scrutiny previously in 2011 when the Center for Environmental Health had accused Kiss My Face, along with 24 other cosmetic companies, of false advertising in labeling their products as organic. The organization cited the California Organic Products Act of 2003, which requires that products labeled as organic must contain at least 70 percent organic ingredients.