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.

 

About the Author

Paula Kim

Paula Kim is a Staffer for the Columbia Science and Technology Law Review. She is a 2L at Columbia Law School.
  • http://www.facebook.com/profile.php?id=841792621 Debbie Young

    SO MUCH FOR THE
    MYTHS

    CONSIDER THE FACTS
    ON CARRAGEENAN FOR A CHANGE

     

    Q.           What
    is Carrageenan??

     

    A.            Carrageenan is a naturally-occurring seaweed extract. It
    is widely used in foods and non-foods to improve texture and stability. Common
    uses include meat and poultry, dairy products, canned pet food, cosmetics and
    toothpaste.

    Q.           Why the controversy?

    A.            Self-appointed
    consumer watchdogs have produced numerous web pages filled with words
    condemning carrageenan as an unsafe food additive for human consumption.   However, in 70+ years of carrageenan being
    used in processed foods, not a single
    substantiated claim of an acute or chronic disease has been reported as arising
    from carrageenan consumption.  On a more
    science-based footing, food regulatory agencies in the US, the EU, and in the
    UN’s Food and Agriculture Organization/World Health Organization (FAO/WHO) repeatedly
    review and continue to approve carrageenan as a safe food additive. 

    Q.           What
    has led up to this misrepresentation of the safety of an important food
    stabilizer, gelling agent and thickener?

    A.            It
    clearly has to be attributed to the research of Dr. Joanne Tobacman, an
    Associate Prof at the University of Illinois in Chicago.  She and a group of molecular biologists have accused
    carrageenan of being a potential inflammatory agent as a conclusion from
    laboratory experiments with cells of the digestive tract.  It requires a lot of unproven assumptions to
    even suggest that consumption of carrageenan in the human diet causes
    inflammatory diseases of the digestive tract. 
    The objectivity of the Chicago research is also flawed by the fact that
    Dr Tobacman has tried to have carrageenan declared an unsafe food additive on
    weak technical arguments that she broadcast widely a decade before the
    University of Chicago research began. 

     

    Q.           What brings poligeenan into a
    discussion of carrageenan?

    A.            Poligeenan
    (“degraded carrageenan” in pre-1988 scientific and regulatory publications) is
    a possible carcinogen to humans;
    carrageenan is not.  The only
    relationship between carrageenan and poligeenan is that the former is the
    starting material to make the latter.  Poligeenan is not a component of
    carrageenan and cannot be produced in the digestive tract from
    carrageenan-containing foods.

    Q.           What are the differences between poligeenan
    and carrageenan?

    A.            The
    production process for poligeenan requires treating carrageenan with strong
    acid at high temp (about that of boiling water) for 6 hours or more.  These severe processing conditions convert
    the long chains of carrageenan to much shorter ones: ten to one hundred times
    shorter.  In scientific terms the
    molecular weight of poligeenan is 10,000 to 20,000; whereas that of carrageenan
    is 200,000 to 800,000.  Concern has been
    raised about the amount of material in carrageenan with molecular weight less
    than 50,000.  The actual amount (well
    under 1%) cannot even be detected accurately with current technology. Certainly
    it presents no threat to human health.   

    Q.           What is the importance of these
    molecular weight differences?

    A.            Poligeenan
    contains a fraction of material low enough in molecular weight that it can
    penetrate the walls of the digestive tract and enter the blood stream.  The molecular weight of carrageenan is high
    enough that this penetration is impossible. 
    Animal feeding studies starting in the 1960s have demonstrated that once
    the low molecular weight fraction of poligeenan enters the blood stream in
    large enough amounts, pre-cancerous lesions begin to form.  These
    lesions are not observed in animals fed with a food containing carrageenan.

     

     

     

    Q.           Does carrageenan get absorbed in the
    digestive track?

    A.            Carrageenan
    passes through the digestive system intact, much like food fiber. In fact,
    carrageenan is a combination of soluble and insoluble nutritional fiber, though
    its use level in foods is so low as not to be a significant source of fiber in
    the diet.

    Summary

                     Carrageenan
    has been proven completely safe for consumption. Poligeenan is not a component
    of carrageenan.

    Closing Remarks

                    The consumer watchdogs with their
    blogs and websites would do far more service to consumers by researching their
    sources and present only what can be substantiated by good science.  Unfortunately we are in an era of media
    frenzy that rewards controversy.    

    Additional
    information available:

                On
    June 11th, 2008, Dr. Joanne Tobacman petitioned the FDA to revoke
    the current regulations permitting use of carrageenan as a food additive.

    On June 11th, 2012 the
    FDA denied her petition, categorically addressing and ultimately dismissing all
    of her claims; their rebuttal supported by the results of several in-depth,
    scientific studies.

    If you would like to
    read the full petition and FDA response, they can be accessed at http://www.regulations.gov/#!searchResults;rpp=25;po=0;s=FDA-2008-P-0347

  • http://www.cosmeticstore.com.au/ organic cosmetics

    These large companies are the ones most likely to use potentially harmful additives in their products.

  • Melissa Melton

    Debbie aka Debbie young works for Ingredient Solutions Inc., the world’s largest independent supplier of carrageenan. Her comments were pasted from her company’s FAQ page. She does this on any site that questions this ingredient. My favorite part is where she calls us all “self appointed consumer watchdogs”…I hope to GOD we are all self-appointed watchdogs of what these megacorporations are putting in our food!! Shouldn’t we all be wary of tons of added processed ingredients? Shouldn’t we all have critical thinking skills and apply those to what we are putting in our bodies???

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