News & Insights

Consumer Groups Seek FTC and USDA Action on Organic Personal Care Products

Consumer Advertising Update

To view this Sidley Update as a PDF click here.

Consumers Union (CU) and the Organic Consumer Association (OCA) filed on March 12th a petition with the Federal Trade Commission (FTC), requesting that the FTC “investigate the widespread, misleading use of ‘organic’ claims on personal care products.” The letter asserts that because the United States Department of Agriculture’s (USDA) National Organic Program (NOP) has not required all personal care products labeled as organic to be USDA-certified, there is widespread consumer confusion. Certain operations, CU and OCA allege, are taking advantage of the large number of industry-based organic certification programs by using the term “organic” on their products without making clear what standard is being used.

This petition to the FTC follows a complaint filed with USDA on January 14th by OCA , Dr. Bronner’s Magic Soaps, Intelligent Nutrients, and Organic Essence. That complaint criticized a number of handling operations for supposedly “selling and labeling personal care products as ‘Organic’ in violation of the OFPA [Organic Foods Production Act] and the NOP regulations.” This complaint to USDA argues that a number of companies marketing “organic” personal care products have not sought USDA certification and do not meet USDA standards for organic labeling. The complaint requests that USDA “investigate and impose civil penalties on the Respondent Companies for mislabeling” and order the companies to “cease and desist from such mislabeling,” along with any other action USDA deems necessary. A March 30th Health News Daily article notes that USDA has responded to the complaint, and “CU and OCA say USDA’s response to their complaint left much to be desired.” A copy of USDA’s response to the complaint is not yet available online.

USDA also has fielded other inquiries regarding organic personal care products in the past year. On July 20, 2009, in response to an OCA letter urging action on organic personal care products, a USDA Agricultural Marketing Service official replied on behalf of Deputy Secretary Kathleen Merrigan, “The USDA regulates organic personal care products only if they are made up of agricultural ingredients. We have no standards for personal care products and have no plans to develop standards at this time.” In November 2009, the National Organic Standards Board (NOSB) voted in favor of recommendations to require USDA certification for organic personal care products. USDA NOP has not yet acted upon the recommendations from NOSB. USDA NOP Director Miles McEvoy noted the issue was “not on the top 10 in terms of our priority list, but it is certainly really important.”

These recent complaints illustrate the controversy surrounding labeling personal care products as “organic” absent USDA certification. Manufacturers and sellers of personal care products labeled as organic should pay close attention to such complaints and the future actions of the USDA NOP and FTC.

Organic Consumers Association and Consumers Union Federal Trade Commission Petition:

Transcript of the November 2009 National Organic Standards Board Meeting:

If you have questions about any of these items, please contact one of the lawyers listed below or your regular Sidley Austin LLP contact.

Alan Charles Raul

Andrew Strenio 

Diane McEnroe

The Consumer Products Practice of Sidley Austin LLP

For over four decades, major international clients have been turning to Sidley for comprehensive defense of bet-the-company products liability cases. The firm has tried, handled and/or appealed cases in nearly every state in the union as well as in every federal circuit. Increasingly, products liability problems involve not only civil litigation, but also interaction with state and federal regulatory agencies and criminal authorities. Our lawyers have experience in all phases of the regulatory- and criminal-litigation interface. We have counseled our clients on minimizing their exposure to costly and intrusive regulatory investigations and litigation challenges while promoting a level playing field on which their competitors are held to the same standards. In addition, our lawyers have assisted our clients in devising effective and cost-efficient legal responses in instances where those clients have faced regulatory investigations or litigation challenges. We also have advocated on behalf of our clients to seek dismissal or mitigation in such matters in a variety of settings including hearings and negotiations with the Consumer Product Safety Commission, the United States Environmental Protection Agency, the United States Food and Drug Administration, the United States Department of Agriculture, the Federal Trade Commission, other state and federal agencies, and private self-regulatory entities such as the National Advertising Division.

The Antitrust Practice of Sidley Austin LLP

Sidley has a global antitrust practice, with lawyers throughout the firm devoting significant time to trial and appellate litigation, civil and criminal government investigations, merger clearances, and counseling and policy projects of all kinds. Sidley's clients include corporations of all sizes, trade associations, governmental entities, professional societies and individuals. We work with clients in a range of industries on every type of antitrust issue, from advising clients on day-to-day business decisions to representing them before a variety of courts and agencies around the world. In the EU, Sidley draws on a wealth of experience and has a proven track record in assisting clients on a wide variety of administrative procedures, investigations and enforcement proceedings carried out by EU institutions and Member State agencies, as well as EU Court litigation. From trade and customs issues, to antitrust, regulatory and anti-fraud actions, our EU lawyers have been successful in the innovative use of EU procedures and litigation to represent and defend our clients’ interests.

To receive future copies of the Antitrust Update via email, please click here.

This Sidley Update has been prepared by Sidley Austin LLP for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers.

Attorney Advertising - For purposes of compliance with New York State Bar rules, our headquarters are Sidley Austin LLP, 787 Seventh Avenue, New York, NY 10019, 212.839.5300 and One South Dearborn, Chicago, IL 60603, 312.853.7000. Prior results do not guarantee a similar outcome.