Lanham Act Implications of the “USDA Organic” Label

The industrialization of food has radically changed the way Americans eat.  Some changes have been for the better: industrialized food production almost guarantees a steady food supply year round at a relatively low cost to both producers and consumers.  Food manufacturing processes remove pathogens from certain foods, making them safer to eat.  Nevertheless, the convenience and security the modern food industry provides come at a price.  We as consumers have very little control over what goes into our food.  Food manufacturers add artificial coloring, preservatives, and partially-hydrogenated oils in order to cut costs and appeal to both the eyes and taste buds of the modern consumer.  Cows are injected with hormones to increase meat and dairy yields, and produce is sprayed with pesticides.  All of these chemical additives have been linked to health problems.

As people become more aware of these questionable practices, there has been increasing consumer demand for organic food.  In order to capitalize on this demand, U.S. farmers and major food companies have applied for “USDA Organic” certification.  Michelle Traher, USDA Organic Certification for the Innovative Farmer, 19 J. Contemp. Legal Issues 254, 254 (2006).  Without this certification, companies and farmers cannot label their products as organic or organically produced.  Id.

To get certified, a producer must meet the requirements of the National Organic Program.  The NOP has certain standards for what substances may be used in the production of food.  For example, the use of synthetic substances and ingredients (with certain exceptions), ionizing radiation, or sewage sludge in the production and handling of food items is prohibited.

Although the NOP is good in that it provides central regulation over the marketing of organic products, the “USDA Organic” label can mislead the average consumer in several ways.  First, many consumers are likely unaware that there are four levels of organic certification.  When 100% of the ingredients and methods used to produce the food are organic, the item can be labeled “100% organic.”  When at least 95% of the ingredients are organic, the item can be labeled “organic.”   When at least 70% off the ingredients used are organic, the item can be labeled “made with organic.”  And items with less than 70% organic ingredients cannot carry the mark, but specific organic ingredients can be identified as such.  Thus, consumers may buy a product labeled “organic,” assuming that it is completely organic, when only a certain ingredient meets the NOP qualifications.

Second, the list of nonorganic ingredients allowed in certified organic food products is more extensive than the average consumer likely realizes.  One permitted nonorganic ingredient is carrageenan, a thickening agent derived from seaweed that has been linked to such health problems as gastrointestinal inflammation and colon cancer.  Another ingredient is cellulose, or wood pulp, which is used as a thickener and filler.  Many consumers are unaware of these additives and buy products with the “USDA Organic” label, assuming they are healthy and natural.

Third, many consumers do not realize that there is a certification fee.  Smaller, family-owned farms, which may employ food cultivation methods that are better both for consumers’ health and the environment, often cannot afford certification and thus have a difficult time competing with larger companies.  These large companies are the ones most likely to use potentially harmful additives in their products, but because they can afford the “USDA Organic” sticker, their products are more appealing to consumers.

One could argue that despite the misperceptions the “USDA Organic” label may create, companies that use the label cannot be accused of false advertising since they meet the requirements of the NOP.  One might further argue that it is the responsibility of the consumer to inform himself about the nature of his purchases.  However, this seems to go against the spirit of trademark law, which is designed to protect consumers, including those who many not have the time or means to fully research every item they purchase, from being deceived about the source or nature of goods in the marketplace.  Thus, the Lanham Act, which sets out a federal registration scheme for federal trademarks and service marks, provides that anyone who uses false or misleading representations of fact to sell a good or service in the marketplace may be subject to civil liability.

The “USDA Organic” label is certainly misleading.  Well-meaning consumers pay more for certified organic products, expecting them to be devoid of harmful ingredients.  However, “no Lanham Act jurisprudence has allowed consumers by themselves, or accompanied by the state, to have standing for a false advertising claim. The Lanham Act protects consumers peripherally, through competitor actions.”  Christopher T. Jones, The Manic Organic Panic: First Amendment Freedoms and Farming or the Attack of the Agriculture Appropriations Rider, 26 J. Land Resources & Envt’l. L. 423, 443-44.  Thus, a competitor in the organic industry would have to bring the false advertising claim.  Unfortunately, it is unlikely that a big organic corporation will bring a claim against a fellow corporation because the current USDA certification system is beneficial to the larger organic producers.  Smaller organic farmers who may be willing to bring such a claim may not have the resources to take on a large corporation.

But perhaps in the future a court will choose to allow individual consumers to bring a false advertising claim.  Or perhaps a small organic farm will decide to challenge the questionable practices of certified organic producers.  Either way, there needs to be a change in the current organic certification system.  The NOP regulations must be stricter, or the labeling on certified organic products should be clearer.  Consumers are purposefully paying more for what they are led to believe is healthier, and the companies benefiting from this should be obligated to meet their customers’ expectations.