“Organic” Products and the First Amendment

Many health and beauty products now label themselves as “organic” and the marketing of that label came into question in a recent case decided by a California Court of Appeal.
 
Dr. Bronner’s Magic Soaps (“Dr. Bronner’s”) makes and sells soaps, lotions, shampoos and other personal care products and has done so for over 60 years.  It labels its products as “Made with Organic Oils” or “Organic” because they comply with voluntary criteria the U.S. Department of Agriculture’s National Organic Program (“NOP”).  To label a product as organic under NOP, at least 95% of the product’s ingredients, other than water and salt, must be organically produced.  Any remaining ingredients must be approved non-agricultural substances or agricultural products that are not customarily available in organic form.  The product cannot contain any synthetic petrochemicals or petrochemicals as cleansing or moisturizing agents.

Organic and Sustainable Industry Standards, Inc. (“OASIS”) is a non-profit trade association representing companies in the health and beauty industry.  OASIS has developed its own set of standards that would permit its members to advertise products with an “OASIS Organic” seal.  The OASIS standards differ from the NOP standards and allow the use of some ingredients that are not permitted under the NOP standards.
 
So, Dr. Bronner’s sued OASIS to prevent the use of the OASIS Organic seal, alleging that it would be misleading and allow the members of OASIS to compete unfairly with products that meet the more stringent NOP organic standards.  OASIS tried to stop the suit, alleging that Dr. Bronner’s was suing OASIS for exercising its right to free speech – articulating the OASIS Organic standard.

Ultimately, the Court of Appeal agreed that OASIS might have a first amendment right to formulate the OASIS standard, but it did not have a protected right to certify actual products that meet the standards once they have been determined.  OASIS has lost the first round of its battle with Dr. Bronner’s and the litigation between them will continue.  Dr. Bronner’s must still prove that the OASIS Organic is misleading and creates unfair competition with those who meet the NOP standards.  The case will continue; in the meantime, OASIS is still developing its standards, hoping that its members will be able to use the OASIS Organic seal on their products.

Anne E. Senti-Willis, Business Group