QUESADA v. HERB THYME FARMS

Appellant’s Reply Brief on the Merits

Cal.October 15, 2014

CASE No. S (subsequently transferred to Honorable Kenneth Freeman) 216305 IN THE SUPREME COURT OF CALIFORNIA MICHELLE QUESADA, Plaintiff-Petitioner and Appellant, V. HERB THYMEFARMS,INC., Defendant and Respondent. After a Decision of the Second District Court ofAppeal, Division Three SUPREME COURT On Appeal From the Los Angeles Superior Court i ii = ry Case No. BC436557 Honorable Carl] West OCT 15 2014 Perey 7 hoe Ee rrene a. MoGuire Clerk PETITIONER’S REPLY BRIEF ON THE MERITS Repo LAW OFFICE OF RAYMONDP. WHATLEY KALLAS, LLC BOUCHER Alan M. Mansfield (SBN 125998) Raymond P. Boucher (SBN 115364) 10200 Willow Creek Road, Suite 160 Maria L. Weitz (SBN 268100) San Diego, CA 92131 444 S. FlowerStreet, 33" Floor Telephone: 619-308-5034 Los Angeles, CA 90071 Facsimile: 855-274-1888 Telephone: 213-596-6000 Facsimile: 213-596-6010 PUBLIC JUSTICE,P.C. JOHNSON & JOHNSON LLP Leslie A. Brueckner (SBN 140968) Neville Johnson (SBN 66329) 555 Twelfth Street, Ste. 1230 439 N. Canon Drive, Suite 200 Oakland, CA 94607 Beverly Hills, CA 90210 Telephone: 510-622-8205 Telephone: 310-975-1080 Facsimile: 510-622-8155 Facsimile: 310-975-1095 Counselfor Plaintiff-Petitioner and Appellant, MICHELLE QUESADA TABLE OF CONTENTS INTRODUCTION|.cceeceeceecneeeseeeeeeeaeeneeseeseesesaeeeseesseeseesaeeas 1 LEGAL ARGUMENTS00.0.ceceeceeceeneeeeseseeeeeseesesseeeseseeeeeseenseeas 2 J. THE OFPA DOES NOT EXPRESSLY PREEMPT CALIFORNIA’S CONSUMER PROTECTION LAWG............000 2 I. THE CLAIMS IN THIS CASE ARE NOT IMPLIEDLY PREEMPTED BY OFPA.wooo. iecceccecesecseseteeteeetecsecneeseeesseeeeaeeseens 10 A. Ms. Quesada's Claims Mirror Governing OFPA Standards and Reinforce Statutory Goals........cccecccccsecseeseeeseesseteeesseeeeees 10 B. Ms. Quesada's Claims are Consistent with OFPA’s Enforcement Regime. ........cccccceeccsceeesseseeeesecseeseeesssesseesreeenseeses 16 C. Ms. Quesada's Claims are Consistent with OFPA’s Regulation of “Split Operations” ............cccccesceeseceesseeseeserseeeeees 21 D. Herb Thyme Misreads Existing OFPA Preemption Cases. ........ 23 II. THE PRIMARY JURISDICTION DOCTRINE DOES NOT FORM AN ALTERNATEBASIS FORAFFIRMING DISMISSAL...cecececeeeseeeesneeneeeeeeceseeeneessecnesseeenseesseeenseesaees 30 CONCLUSION........cccccssscssssessersscssssssevescssssecescesceseeeseccssessacsscrsscesnsessenees 35 TABLE OF AUTHORITIES CASES All One GodFaith, Inc. v. The Hain Celestial Group, Inc. et al. (N.D.Cal. Aug. 8, 2012, No. C 09-3517 SI), 2012 WL 3257660... 26, 27 Altria Group, Inc. v. Good (2008) S55 U.S. TO. eccccccsccescceecscesecnsssesaeceaeceeesacnesaesaeesaaseeesaseeeeseseesesseeeasens 22 Arce v. Kaiser Foundation (2010) 181 Cal.App.4th 471cececcececesceecseeeseeeeesseeeseseseesseesseecseeeessseeseens 33 Bates v. Dow Agrosciences LLC (2005) S44 US. 4BLeeeecceceeeceseeeesseeseeesseeeesssescsseseeesseeeeeseseeseeseaes 2, 13, 14, 17 Brown v. Hain Celestial Group, Inc. (N.D.Cal. Aug. 1, 2012, No. C. 11- 03082 LB) 2012 WL 313801] oo. cccccccesecsseecsessesseeeessseesseensetens passim Clark v. Time Warner Cable (9th Cir. 2008) 523 F.3d L110eeceeeeeseceneeeeeeeeceeeeceeceeeesseseceeesseessesesecsseeseeaee 30, 31 Cundiffv. GTE California, Inc. (2002) 101 CalApp.4th 1395 ooo ceccccsceeeseeeneeeeseeesestesssetesecsseesseensenas 31, 32 Freightliner Corp. v. Myrick (1995) S14 US. 280ceceecsereeseeteeeceseeeeaeeseesaeeeseeeaeeseeeeesesseesseseessseeseenees 6 Gade v. Nat’l Solid Wastes Mgmt. Ass’n (1992) SOS U.S. 88... ceecccccccccessceesecessneeeceeecsssseececsaeceusecessseaessesssenescecsrerenstess 4,5 Geier v. American Honda Motor Co. (2000) S29 US. 861eee eeceececeeeeeceeseeeeessseeesseeesseesseceeeeccsecesseeesseeseeesseseneess 20 General American Tank Car Corp. v. El Dorado Terminal Co. (1940) 308 US. 422eee cecccecececeeeseeseeetseeenaeeecsssecsesessecessseccsueeecssecssasestestsuesaes 30 In re Aurora Dairy Corp. Organic Milk Marketing and Sales Litig. (8th Cir. 2010) 621 F.3d 780 oo.eccccecceeseceesseecesseeesecsssesecseesesseecssesennsesees passim In re Farm Raised Salmon Cases (2008) AD Cal.4th 1077 ooo. ecccceccecececeeseeeceeneeeeseseseeensseseeseeensesusesseeesseneeeanes passim i In re Tobacco Cases IT (2007) Al Cal.4th 1257ccccccccccescecssesssseeseeseeseeeesseesecesseccseccsessseessesseseaseenenseens 6 Jones v. ConAgra Foods, Inc. (N.D.Cal. 2012) 912 F.Supp.2d 889.0.cccccccccecssecesseessseeeecesseeeeeessesessssesensnessereeeas 28, 33 Kashmiri v. Regents of University ofCalifornia (2007) 156 CalApp.4th 809 oo... cccccccccssccsecseeseessesesecesscecssecseesssessesseeesecsnesseees 30 Lavie v. Procter & Gamble Co. (2003) 105 CalApp.4th 496 ooo.ee cccccesceeseecneeeeneeseeeseeseesesesesseseesaeesaseseessaes 15 Medtronic, Inc. v. Lohr (1996) S18 US. ATO.eeceeseecenteeseessseeeeeeeeaesnaeeeeaeeneeecseensesseeeesesseesatenee passim Miller v. Superior Ct. (1996) 50 Cal-App.4th 1665 oo... ccccesesseesessneeeeseeseeesseessecssesssecaecsasessesaees 31 Naderv. Allegheny Airlines (1976) A26 U.S. 290.eeceecccceccesseecesssseeeeeesaseesseecssseeeesssseesesssecesssessseeressseessaaees 32 Palermov. Stockton Theatres, Inc. (1948) 32 Cal.2d 53 oececcccccccccsnecesssseesceeesseeessesessaeeesesseeccenssseceesssesesecevsseosaaeess 16 People ex rel. Harris v. Pac Anchor Transp., Inc. (2014) S9 Cal4th 772 oo.ccecccescecscesecesessesesescesscesceseeessecesecesseesseseessseseecressesssseeass 5 People v. Fong (2013) 217 Cal.App.4th 263 oo... cecccccccceeseesscesseeceseeesseeseeseecseeesesesssessseensseesees 16 POM Wonderful LLC v. Coca-Cola Co. (2014) 134 S.Ct. 2228eeeecceccceeeeceeeeeeesseteaeeeseesteseeenseecesseeeseeesssseeeesseeseatenss 27 Prospect Medical Group, Inc. v. Northridge Emergency Med. Group (2009) AS Cal4th 497oececececccseecessneeesseeseseeseeeesseeeesseessssecsseeeeseessesensesseeeees 32 South Bay Creditors Trust v. General Motors Acceptance Corp. (1999) 69 Cal.App.4th 1068 0... cee eccccccecssessceeseecessecesseecessecesseeeeserseseanenes 30, 33 Ticconi v. Blue Shield ofCalifornia (2008) 160 Cal.App.4th 528 ooo ccccccccceceesseccseecesssecssseeeesseesseesenseeassessecsseerens 33 Wise v. Pac. Gas & Elect. Co. (1999) 77 CalApp.4th 287 o...cceccccccccsscccccssecsscesseecessesesaeecerseeceseseeeeessecaresasecnaas 31 lil Wyeth v. Levine (2009) S55 U.S. S55 vce ececcceneceneeenneeeeeseesesecseeseesseesaeeseseeesseesaeeaseesseeneengees 15,21 FEDERAL STATUTES 15 U.S.C. § 1331 et SQ... eee ececeseeceeeceeseeeeseeeeceeesseesseeceeesseessseseessseesneens 6 QL U.S.C. § 337 iccccceccecenceeeneesseessaeesesseeseseessseesesaeesseeseecsssecsesesseessatessesens 17 21 U.S.C. § 3431)(a) oeeee eceeeseceseeeeeseseeceeeeneeceaesaeecseessssseeeseesseesesenseesees 18 29 U.S.C. § 667(D) oo. eee eeeeeseeeseeseeeneeeseseeacecseeseeseeeaeessesesseseeeseeesseneeensseseenes 4 TULS.C. § 6501 onceceeecnceeereneeeeeecesecneceneeeeaeenaesneecsesesssseesseeeseeeeeeas 11, 12 7 ULS.C. § 6501 et SOQ... eeeceeceecceeceeseesescessseeeseeeeseecseecesseessecestestseeenseensees 1 TULS.C. § 6503 ooo eeecesnccecesscesereneeceateneeenseeeseesseseaessesseessesaueeaseseecsseeesenes 3 T ULS.C. § 6507 ooo ecceceesceceeececeeeeeeseeeseeeaeesseeeaeenseeeatenssssseseeseeeateatens passim TUS.C. § 6519 oi icecceeecneececeeseeesneeeeesaeesaeenesecesaeecseeesseccssessseessseessseseateeas 34 CALIFORNIA STATUTES Bus. & Prof. Code, § 17200 et Sq. ......cecccccsccccsseestseeeseessceseeceseessseeessnessaeens 1 Bus. & Prof. Code, § 17500 oo...ccc cccccccessseccesseceesseesseeceneeesenseeeseeresserens 1 Civ. Code, § 1750 et S€q. 0. cecceccccceeseccessessesesecesecesseessceseensecseenseessessecereceaseets 1 Civ. Code, § 1770 ....eccccccceccccccessessceessecccessceesseeessecessecssecesseceansesssccaueesesersueseass 5 Food & Agr. Code, § 46000 et Seq. 0... eeeceecesseesesssensesseneeessesesseesseaesaeesseneens 1 Health & Saf. Code § 111910 oooecesecsceeneceseesneeeeseseeeseesseesesesseesseens 16 Health & Saf. Code, § 110820 oo.eccccecccesecseessensessseseesesseceseeeeeaeenseeeees 13 Health & Saf. Code, § 110830 ooocccccsseeceeseeeeseeccsseeseseseseseseessueens 13 Health & Saf. Code, § 110956 weece ceseeeseeeseeeseesseesseesecsseeessessessseennens 13 iv Health & Saf. Code, § 110810 et S€q. oo... ec eeceecsesssceeseecescesseeeseesstesseenes 1, 13 REGULATIONS 65 Fed.Reg. 80548 (Dec. 21, 2000) .0..eeececcccesseeeseteceetteeeeeeeeeaees 8, 11, 18 65 Fed.Reg. 80557 (Dec. 21, 2000) .0.. eee eecccccccenteeeseneeeeseeeesseessseesseeessseeee 8 65 Fed.Reg. 80587 (Dec. 21, 2000) oo... eeceecceeteceseteceeeteeeseteetsseeesttessneeeeens 11 65 Fed.Reg. 80618 (Dec. 21, 2000) oo... eeecceseeceeneeeeeteeeteeetestesseeeaeees 18 65 Fed.Reg. 80663 (Dec. 21, 2000)...ee eeceececenceceeeeseeeesetestenaeenseenss 9,19 65 Fed.Reg. 80668 (Dec. 21, 2000)...cece eeceeeneeeeeeceeeeessetesetsneeneeenes 9,19 65 Fed.Reg. 80682 (Dec. 21, 2000) 0...cceeseeseeceseeeseceteeeeeeesseteseesneeesseeess 8 7 CLBLR. § 205.20 1(5) occ eecceesseseseceeseeeceeceseceeeseaeeceeeesneeeneeeesnesasesseesseeensnees 22 7 CLBLR. § 205.272(a) oo.cceccceececeeseeestesseeesececseceaeeeaeeseceseeeaeenseeneseseeeeeenseens 22 7 CLPLR. § 205.403 ooeeecccecceccceeceeesstecsceeesececseceaeeeesseeceesseeeseseeesesesteeeseeens 22 LEGISLATIVE HISTORY S. Rep. No. 357, 101st Cong., 2d Sess. 289 (1990) oo... ceceseecesseeeeeenees 11 INTRODUCTION Congress passed the Organic Foods Production Act of 1990 (“OFPA”) (7 U.S.C. § 6501 et seq.) to ensure “organic” foods meet a consistent, minimum standard necessary to justify its premium price tag. And California opted to create its own federally approved organic program to facilitate strict enforcement of organic standards in this state. (See Food & Agr. Code, § 46000 et seq.; Health & Saf. Code, § 110810 et seq.) The OFPA wasnever intended to deny consumers the ability to seek redress for “organic fraud” through state consumerprotection laws like the Consumers Legal Remedies Act (“CLRA”), Civil Code section 1750 et seq., the False Advertising Law (“FAL”), Business and Professions Code section 17500, and the Unfair Competition Law (“UCL”), Business and Professions Code section 17200 et seq. Defendant-Respondent Herb Thyme Farms,Inc.’s arguments to the contrary conflict with the text and purpose of OFPA, ignore the interpretation of the agency charged with implementingthe statute (the U.S. Department of Agriculture (USDA)), and run contrary to the preemption case law of this Court and the United States Supreme Court. Herb Thyme also fails to show any justification for its argument that the primary jurisdiction doctrine affords an alternate basis for dismissal. Accordingly, allowing Plaintiff-Petitioner and Appellant Michelle Quesada’s claims to go forwardis the only legally correct and equitable result in this case. 1 LEGALARGUMENTS Contrary to Herb Thyme’s contention, this lawsuit is neither expressly nor impliedly preempted by OFPA. Both the United States Supreme Court and this Court have held that a “federal statute” only preempts state law where “such an intention [is] clear and manifest.” (Bates v. Dow Agrosciences LLC (2005) 544 U.S. 431, 449; accord In re Farm Raised Salmon Cases (“Farm Raised Salmon’) (2008) 42 Cal.4th 1077, 1098.) Both courts have refused to find preemption in situations just like this case, where the duties under state and federal law are the same; state but not federal law provides a remedy for violation of these duties; and the federal statute does not explicitly foreclose states from providing such a remedy. (See, e.g., Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 495; Bates, supra, at p. 447; Farm Raised Salmon, supra, at p. 1098.) None of Herb Thyme’s arguments to the contrary withstandsscrutiny. I. THE OFPA DOES NOT EXPRESSLY PREEMPT CALIFORNIA’S CONSUMER PROTECTION LAWS. Herb Thyme’s argument that OFPA expressly preempts state consumer protection laws conflicts with OFPA’s text and is contrary to the preemption case law ofthis Court and the U.S. Supreme Court. First, there is no language in OFPA that preempts—or even references—state consumer protection statutes. The only preemptive language found anywherein the statute applies exclusively to state “organic certification program[s].” (7 U.S.C. § 6507, italics added.) OFPA specifically provides that each state may establish its own “organic certification program for producers and handlers of agricultural products,” provided that the state program is approved by the Secretary ofAgriculture. (Id. at §§ 6503, 6507.)' There is, however, no language preempting any other state laws anywherein the entire statute. On its face, then, OFPA merely preempts states from establishing their “own organic certification programs” without the Secretary’s approval; it clearly does not preempt state consumerprotection statutes(or, for that matter, any other state law that is not an “organic certification program”). And there is, of course, no suggestion that California’s state consumer protection statutes are themselves an organic certification 2program. ' Section 6503 provides that “[i]n establishing the [federal organic] program undersubsection(a) of this section, the Secretary shall permit each State to implement a State organic certification program for producers and handlers of agricultural products that have been produced using organic methods as provided for in this chapter.” (7 U.S.C. § 6503.) Section 6507 provides that “[t]he governing State official may prepare and submit a plan for the establishment of a State organic certification program to the Secretary for approval. A State organic certification program must meet the requirements of this chapter to be approved by the Secretary.” (Id. at § 6507, italics added.) * It has never been asserted that the Secretary of Agriculture approved California’s consumer protection laws as part of the state’s organic certification program because OFPA does not require such approval. Herb Thyme’s contention to the contrary, (see Resp. Br. at p. 5, fn. 9), is based on 3 The conclusion that OFPA does not expressly preempt state consumerprotection claims follows directly from the U.S. Supreme Court’s preemption jurisprudence. In a case directly on point, the Court considered the preemptive effect of a provision of the Occupational Safety and Health Act of 1970 (OSHA) requiring states which “desire[] to ‘assume responsibility’ for ‘development and enforcement. . . of occupational safety and health standards’” to submit a plan to do so to the federal government for approval. (Gade v. Nat’! Solid Wastes Mgmt. Ass’n (1992) 505 US. 88, 99, quoting 29 U.S.C. § 667(b).) OSHA’s language, the Court explained, preempts only state law that “constitutes, in a direct, clear and substantial way, regulation of worker health and safety.” Ud. at p. 107, internal quotation marks omitted.) Laws of “general applicability,” on the other a misreading of Petitioner’s Opening Brief, which stated that “OFPA expressly preempts state law relating to organic certification and labeling unless, as in the case in California, the laws are part of an approved State Organic Plan.” (Pet’r Br. at p. 20.) The reference to “state law relating to organic certification and labeling” was intendedto refer to state statutes and regulations specifically governing organic certification and labeling, not state consumer protection laws of general applicability. Nor is it “concede[d] [that] all State activity is preempted unless it is submittedto, and approved by, the federal government.” (Resp. Br. at p. 26, italics original.) Rather, the only “State activity” arguably within reach of OFPA’s express preemption language would be state statutes and regulations specifically relating to organic production, handling, or certification that have not been approvedas part of a State Organic Program.In other words, state consumer protection laws are never expressly preempted by OFPA; the only possible way for such laws to be preempted is if they directly conflict with federal purposes. As explained, infra at II, no such conflict exists in this case. hand, are not preempted. (/bid.) Indeed, Gade went on to clarify that generally applicable laws are not preempted even if they may havea “direct and substantial effect” on the federally regulated subject matter. ([bid.) Thus, in the OSHA context, laws that “regulate workers simply as members of the general public” are not preempted despite potentially having a direct effect on worker safety. (/bid. ) Like OSHA in Gade, supra, 505 U.S. at page 107, OFPA authorizes states to assume responsibility for enforcement of a federally regulated area, subject to federal approval of the state plan, and does not preempt state laws “of general applicability.” And as this Court has recognized, California’s consumer protection statutes are laws of “general applicability.” (See Farm Raised Salmon, supra, 42 Cal.4th at p. 1098; People ex rel. Harris v. Pac Anchor Transp., Inc. (2014) 59 Cal.4th 772, 783 (2014).) As such, California’s consumer protection laws are not “organic product standards” (Resp. Br. at p. 25). In fact, they do not mention organic agriculture, “or any other industry for that matter,” at all. (Pac Anchor, supra, at p. 783.) Rather, California’s consumer protection laws prohibit deceptive labeling on all “goods or services,” (see, e.g., Civ. Code, § 1770), and therefore are not subject to express preemption. (See Gade, supra, at p. 107; see also Pac Anchor, supra, at p. 783 [UCL does not mention motor carriers and is therefore not preempted by Federal Aviation Administration Authorization Act of 1994]; In re Tobacco Cases H (2007) 5 41 Cal.4th 1257, 1272 [UCL,as a law of general application, falls outside preemptive reach of Federal Cigarette Labeling and Advertising Act (15 U.S.C. § 1331 et seq.)].)° Herb Thyme’s arguments to the contrary cannot be squared with the plain language of OFPA. Herb Thymeinterprets Section 6507 to mean “anything not approved by the federal government remains preempted.” (Resp. Br. at p. 3.) But that is not what the statute says. OFPA’s sole preemption clause (7 U.S.C. § 6507) merely requires states to obtain federal authorization for state organic certification programs; it says nothing about state consumer protection statutes. Herb Thymeis thus reading words into the statute that Congress never wrote, in violation of core principles of preemption analysis. (See Farmed Raised Salmon, supra, 42 Cal.4th at p. 1092 [“[an] express definition of the preemptive reach ofa statute ‘implies’ —1.e., supports a reasonable inference — that Congress did not intend to pre- empt other matters . . .”], quoting Freightliner Corp. v. Myrick (1995) 514 U.S. 280, 288.) * Contrary to Herb Thyme’s contention, it is not at all clear that OFPA expressly preempts even state laws that directly regulate organic food. OFPA’s approval requirement applies only to state organic certification programs. The Act says nothing about other state organic regulations. To be sure, such regulations would be preempted if they conflict with OFPA, but they would be impliedly, not expressly, preempted. Herb Thyme’s suggestion that California’s consumer protection statutes could have been submitted to the federal government for approval as part of a State Organic Program (“SOP”) (Resp. Br. at pp. 4, 18) is also wrong. OFPA merely invites states to seek federal approval of organic “certification programs.” (7 U.S.C. § 6507.) State consumerprotection laws of general applicability are not “certification programs”; they have nothing to do with certification at all. As a result, it is doubtful that California could have submitted its consumer laws to the federal governmentas part ofits SOP even if the state had wanted to. Herb Thyme’s argument to the contrary only serves to underscore its misreading of the statute. Nor is Herb Thyme correct in asserting that the administrative enforcement provisions in the OFPA and the National Organic Program (“NOP”) reveal Congressional intent to expressly preempt any state laws relating to organic enforcement. Reading OFPA in this manner would lead to an absurd result, 7e., that Congress intended to occupy the field of enforcement while expressly permitting states to adopt more restrictive production and handling requirements. (See 7 U.S.C. § 6507.) Moreover, nothing in the text of the OFPA contradicts the accepted legal axiom that where Congress has authorized states to adopt parallel requirements,it also authorized states “to provide for private remedies for violations of those requirements.” (Farm Raised Salmon, supra, 42 Cal.4th at p. 1094, citing Lohr, supra, 518 U.S. at p. 495.) While OFPA contains a federal 7 administrative process for evaluating complaints, there is no indication whatsoever that Congress intended to restrict how a state may choose to enforce its approved SOP, or that administrative review was intended to be the only means for enforcing an SOP. Herb Thyme’s “everything-not-approved-is-preempted” argumentis also directly contradicted by the USDA’s own views on the matter. Contrary to Herb Thyme’s contention (see Resp. Br. at p. 25), OFPA’s regulatory history supports the conclusion that the statute does not preempt state consumer protection laws. In the preamble accompanying the final OFPA regulations, the USDA stated that the implementing regulations expressly preempt state “statutes and regulations related to organic agriculture” and forbid states from “creating certification programs to certify organic farms or handling operations unless the State programs have been submitted to, and approved by, the Secretary.” (65 Fed.Reg. 80548, 80557, 80682 (Dec. 21, 2000), italics added). In making those statements, the USDAwasreferring to the “32 states [that had] organic statutes on their books” at the time OFPA waspassed. (/d.) At that time, as now, ail states had consumer protection statutes of general applicability—i.e., not specifically related to organic agriculture—the USDA could not have viewed those laws as “statutes and regulations related to organic agriculture” under the OFPA (7 U.S.C. § 6507). (See Farm Raised Salmon, supra, 42 Cal.4th at p. 1091 [noting “Congress’s presumed awareness that 8 ‘virtually every state in the nation permits one or more nongovernmental parties to enforce state . . . laws of general applicability prohibiting deceptive acts and practices in the marketplace”’].) This interpretation is confirmed by the agency’s statement that, because OFPAprovides a standardized definition of organic, the Act “may reduce the cost associated with enforcement actions in consumer fraud cases.” (65 Fed.Reg. at 80663, 80668; see also id. at 80668 [observing that, “[o]nly about half of the States have any organic legislation, and few of those states have laws with enoughteeth to permit prosecution of organic fraud. In states without similar laws, the costs associated with remedies via the tort system may be high. The [National Organic Program] established in this final rule is expected to fill in important State and regional gaps in enforcement in organic fraud cases.”’].) These statements make clear that the USDA did not interpret OFPA to displace consumerlitigation or to eradicate “State enforcement” in the area; rather, the USDA expected OFPA to impose a uniform standard of law under which suchlitigation could proceed moreefficiently. Put simply, OFPA says nothing about state consumer protection statutes. Its requirement that the Secretary of Agriculture approve state organic certification programs cannot be read to apply to—let alone expressly preempt—generally applicable state laws that have nothing to do with organic products at all. Under the jurisprudence of this Court as well 9 as that of the U.S. Supreme Court, Herb Thyme’s express preemption argument musttherefore fail. Il. THE CLAIMS IN THIS CASE ARE NOT IMPLIEDLY PREEMPTED BY OFPA. The lower court also erred in finding this lawsuit impliedly preempted by federal law. If anything, this lawsuit affirmatively supports and reinforces OFPAby fostering consumer confidence in organic produce. Without lawsuits like this one, consumers would have no recourse against unscrupulous producers who lie about the contents of their allegedly organic products. This would inevitably erode consumer confidence in the organic marketplace, which is exactly what Congress sought to prevent when passing OFPAinthefirst place. A. Ms. Quesada’s Claims Mirror Governing OFPA Standards and Reinforce Statutory Goals. Asa threshold matter, Herb Thyme’s implied preemption argument is based on a flawed premise: that this lawsuit undermines OFPA’s purposes because it “directly attacks” Herb Thyme’s certification; in reality, this lawsuit directly mirrors, and thus positively reinforces, OFPA’s standards. As a result, just as this Court concluded in Farm Raised Salmon, supra, 42 Cal.4th at page 1093, this lawsuit cannot possibly undermine any federal purposes. First, a Jury verdict in favor of injured consumers would not affect Herb Thyme’s certification in the least; all such a verdict would do is 10 require Herb Thymeto stop its illegal, dishonest practices and compensate consumers whopaid premium prices for conventionally farmed product. In the wake of such a verdict, Herb Thyme would remain free to produce and market its organic product as “Fresh Organic” pursuant to its organic certification (unless, of course, the government revokedthat certification); the only thing Herb Thyme would not be able to do is covertly mix its organic herbs with conventional herbs and then lie about the contents on the product’s label.’ Such a result does not underminefederal goals; it advances them. As Herb Thyme acknowledges, in enacting OFPA, Congress sought to establish national standards for organic products in order to assure consumers that organic products meet minimum standards. (See 7 U.S.C. § 6501; S. Rep. No. 357, 101st Cong., 2d Sess. 289, p. 570 (1990) [the OFPA “establishes the minimum standards that must be met in order for a product * On this point, it is worth noting that OFPAandits regulations makea clear distinction between organic “operations,” which must be certified, and individual organic products, which are not subject to any certification requirements. (See 65 Fed.Reg. 80548, 80587 (Dec. 21, 2000) (“certification is to an organic process, not organic product”].) An operation can be properly certified and yet produce products that are mislabeled. This distinction is underscored by the fact that there are some operations (mostly small ones) that are exempt from certification under OFPA. Exempt operators may still label their products “100% organic,” but must still comply with all OFPA requirements (besides certification). (See 65 Fed.Reg. 80548.) As applied to these exempt operations, state laws that mirror federal requirements cannot possibly undermine certification becausethe operationsare notcertified. 11 to be labeled as organically produced”].) If producers like Herb Thymeare able to lie with impunity about whether their products are actually “organic” (rather than co-mingled), then consumers would lose faith in the organic marketplace and refuse to pay the premium prices associated with organic goods. (See Brown v. Hain Celestial Group, Inc. (N.D.Cal. Aug. 1, 2012, No. C. 11-03082 LB) 2012 WL 313801 at p. *10 [adopting Defendant’s interpretation [of OFPA] would mean that a consumer would have no protection against the deceptive or fraudulent labeling based on the use of the term organic”].) Such erosion of consumer faith in the organic market would undermine OFPA’s goal of “assur[ing] consumers that organically produced products meet a consistent standard.” (7 U.S.C. § 6501.) Nor is Herb Thymecorrect in arguing that this lawsuit undermines OFPA by seeking to substitute a “reasonable consumer” standard that is at odds with OFPA becausethis standard is not based on whatever a consumer thinks the law should be. Rather, Ms. Quesada must prove a “reasonable consumer” would expect a product labeled “100% Organic” would actually be organic within the meaning ofthe relevant law. The relevant law hereis California’s Organic Products Act of 2003, Health and Safety Code section 12 110810 et seq. (“COPA”), which incorporates by reference the federal organic standards promulgatedpursuant to OFPA~ Because the COPA standards directly incorporate OFPA’s requirements, there is no divergence between the “reasonable consumer” standard applicable in this case and the federal organic standards; they are, for all intents and purposes, one and the same. Thus, although this lawsuit does not directly seek to enforce federal law, the “reasonable consumer” standard directly reinforces OFPAitself. Any finding of implied conflict preemption would be in error. (See e.g., Farm Raised Salmon, supra, 42 Cal.4th at p.1093 [rejecting federal preemption of consumer protection claims alleging violation of state laws imposing requirements identical to federal regulations]; Bates, supra, 544 U.S. at p. 451 [‘[p]rivate remedies that enforce federal misbranding requirements would seem to aid, rather than hinder, the functioning of [the Act]”]; Lohr, supra, 518 U.S. at p. 495 [“[n]Jothing in [federal law] denies [a state] the right to providea traditional > See Health & Saf. Code, § 110820 (“no product shall be sold as organic pursuant to this article unless it is produced according to regulations promulgated by the [National Organic Program]’); id. at § 110830 (“[n]o product handled, processed, sold, advertised, or offered for sale in this state, shall be sold as organic unless it also is prominently labeled and invoiced with similar terminology as set forth by regulations promulgated by the NOP”[italics added]); id. at §110956, subd. (a) (“[a]ll organic product regulations and any amendments to those regulations adopted pursuant to the NOP,that are in effect on the date this bill is enacted or that are adopted after that date shall be the organic product regulations ofthis state”[italics added]). 13 damages remedy for violations of common-law duties that parallel federal requirements”].)° Farm Raised Salmon, supra, 42 Cal.4th at page 1084, which rejected federal preemption of claims that mirrored federal law, further rebuts Herb Thyme’s “reasonable-consumer” argument. There, the complaint asserted four state-law causesof action, including a UCL violation. The lawsalleged to be violated as a predicate for the “unlawful” prong ofplaintiffs’ UCL claim included provisions of the Sherman Food, Drug, and Cosmetic Law that mirrored federal labeling requirements. (/d. at pp. 1173-74.) There, as here, prevailing on the UCL claim would require a finding that a “reasonable consumer” would not have purchased the productif it had been properly labeled, (see, e.g., Lavie v. Procter & Gamble Co. (2003) 105 ° Bates, supra, 544 U.S. 431, also forecloses any argument that state consumerlawsuits are preempted because they will incentivize producers to do more than OFPA requires. Bates considered a preemption clause that, in part, required a pesticide manufacturer to submit its label to the EPA for approval. The statute further prohibited states from “impos[ing] or continu[ing] in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.” (/d. at pp. 442-43.) The court of appeal had held that state causes of action based on violations of an express warranty violated this provision because the effect of permitting such causes of action might be that manufacturers would change their labels. The U.S. Supreme Court explicitly rejected this “effects-based test” for conflict preemption, holding that “[a] requirement. .. 1S a rule of law that must be obeyed; an event, such as a jury verdict, that merely motivates an optional decision is not a requirement.” (/bid.) 14 Cal.App.4th 496, 507-08), yet this Court concluded such claims would not underminefederal purposes. Finally, it is important to note that just because federal law permits a certain label does not mean that it also preempts state-law claims for injuries based on that label. For example, in Weth v. Levine (2009) 555 U.S. 555, the U.S. Supreme Court held that state failure-to-warn claims alleging a drug label’s inadequacy did not obstruct federal regulation, even though the drug label, by law, had been approved by the Food and Drug Administration (“FDA”). The Court rejected the drug company’s argument that “[o]nce the FDA has approved a drug’s label, a state-law verdict may 39not deem the label inadequate,” noting that “Congress did not provide a federal remedy for consumers harmed by unsafe or ineffective drugs, [which evidently] determined that widely available state rights of action provided appropriate relief for injured consumers.” (/d. at p. 574.) Likewise, Congress did not provide a remedy for consumers misled by “organic” on labels into believing that food meets the national organic handling and production requirements. Just as allowing state-law claims for drug labeling does not interfere with the FDA’s role in approving drug labels, allowing state-law claims for labeling of food madein violation of 15 organic production requirements does not interfere with the USDA’srole in certifying operations as organic.’ B. Ms. Quesada’s Claims are Consistent with OFPA’s Enforcement Regime. Nor does the fact that OFPA “rejected private actions to enforce the [OFPA] regulations” (Resp. Br. at p. 20) render this lawsuit in conflict with federal purposes. To begin with, this argumentis definitively rebutted by this Court’s ruling in Farm Raised Salmon, supra, 42 Cal.4th 1077, which rejected federal preemption of state claims predicated on state-law requirements that directly mirrored the federal Food Drug and Cosmetic Act (“FDCA”) despite the FDCA’s express rejection of private enforcement actions. (/d. at p. 1176.) This Court found that the FDCA’s exclusive enforcement provision did not impliedly bar the state lawsuit because “Plaintiffs do not seek to enforce the FDCA; rather, their deceptive marketing claimsare predicated on violations of obligations imposed by the ’ Similarly, OFPA does not preempt the private right to injunctive relief found in Health and Safety Code section 111910. Herb Thyme’s alternative argument — that Section 111910 was not intended to apply to COPA because it was enacted as part of COPA’s predecessor statute — also fails. Courts have severely limited the rule Herb Thymerelies on in Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53. Under People v. Fong (2013) 217 Cal.App.4th 263, for example, Herb Thyme’s nullification argument would succeed only if the legislature intended a time-specific limitation on Section 111910. Since there is no evidence of such a limitation, this remedy remains viable. 16 Sherman Law, something that state law undisputedly allows.” (/d. at p. 1095.) The Farm Raised Salmonholding applies here in full force. Just as in Farm Raised Salmon, supra, 42 Cal.4th 1077, Ms. Quesada seeks compensation for violations of state law that directly mirrors federal law requirements. And just as in Farm Raised Salmon, Herb Thymearguesthat because federal standards cannot be enforced private lawsuits, state lawsuits seeking to enforce the parallel state requirements are necessarily in conflict with, and impliedly preempted by, the federal statute. Farm Raised Salmon definitively rejected this position; the exact same conclusion is warranted here. (See also Bates, supra, 544 U.S. at p. 448 [holding FIFRA “does not preclude States from imposing different or additional remedies, but only different or additional requirements. Accordingly, although FIFRA does not provide a federal remedy to farmers and others whoare injured as a result of a manufacturer’s violation of FIFRA’s labeling requirements, nothing in [the preemption clause] precludes States from providing such a remedy”(italics in original)].)* ’ Herb Thyme argues that Farmed Raised Salmon has no bearing here because the law at issue there, unlike OFPA, contains an uncodified provision that appears to limit the statute’s preemptive reach. (Resp. Br. at p. 44.) This argument ignores that the FDCA is substantially more restrictive than OFPA because (1) the FDCA expresslyforbids in the statute itselfany private enforcement of federal law (see 21 U.S.C. § 337), whereas OFPA contains no such prohibition; and (2) the FDCA expressly forbids 17 Second, OFPA’s implementing regulations confirm that the absence of a private right of action in OFPA does not render this lawsuit in conflict with federal law. The preamble to the final OFPA regulations explains that Congress declined to impose an exclusive federal enforcement regime on SOPs precisely because “[m]any States currently have organic programs with the kind of comprehensive enforcement and compliance mechanisms necessary for implementing any State regulatory program.” (65 Fed.Reg. 80548, 80618 (Dec. 21, 2000).) Thus Congress based its decision not to create a private right of action under OFPA on the fact that many states (including California) already possessed ample authority to “enforce” compliance with an SOP. One such “mechanism,” of course, is a lawsuit like this one. Other aspects of OFPA’s regulatory history confirm that Congress had no intention of eliminating state consumer protection laws when it any state law that is “not identical” to federal law, (id. at § 343(1)(a)), whereas OFPA allows state organic plans to establish more restrictive requirements than federal law, subject to federal approval. (See 7 U.S.C. § 6507.) Nor can Farm Raised Salmon be distinguished on the ground that the claims at issue here are premised on a “reasonable consumer” standard that “in no way involves federal law.” (Resp. Br. at p. 45.) This argument fails because, as explained above, although this action is not based on federal law, it directly mirrors federal law — just as in Farm Raised Salmon. Finally, as noted above, the claims at issue in Farmed Raised Salmon were based on California’s consumer protection statutes, and thus involved the “reasonable consumer” standard (Farm Raised Salmon, supra, 42 Cal.4th at pp. 1173-74) — a fact that did not trouble this Court in the least. 18 passed OFPA. The Regulatory Impact Assessment accompanying OFPA’s final regulations makes this point with striking clarity. There, the USDA observed that the “primary benefits from implementation of USDA’s National Organic Program are standardizing the definitions and the manner in which organic product information is presented to consumers, which may reduce the cost associated with enforcement actions in consumer fraud cases... .” (65 Fed.Reg. 80548-01, 80663 (Dec. 21, 2000), italics added.) Even moretelling, the USDA went on to observethat, “[o]nly about half of the States have any organic legislation, and a few of those states have laws with enough teeth to permit prosecution of organic fraud. Jn states without similar laws, the costs associated with remedies via the tort system may be high. The [National Organic Program] established in this final rule is expected to fill in important State and regional gaps in enforcement in organic fraud cases.” (65 Fed.Reg. 80668 (Dec. 21, 2000), italics added.) The italicized language reveals that OFPA wasintended to “fill in” state and regional enforcement “gaps,” not to supplant state laws entirely. The language further reveals that, at the time of OFPA’s passage, the federal government well understoodthat “the tort system” played a role in enforcing organic standards pre-dating OFPA — a role that needed shoring up, not eradication. The USDA’s view that OFPA intended to supplement—notsupplant—state enforcement regimes provides yet another reason to reject implied conflict preemption here. (See, e.g., Geier v, 19 American Honda Motor Co. (2000) 529 U.S. 861, 883 [according “some weight” to federal agency’s views about the impact of tort law on federal objectives where “the subject matter is technica[l] and the relevant history and background are complex and extensive”’].) In the face of these views, Herb Thyme doesnotcite any contrary evidence that Congress affirmatively intended to wipe out state consumer laws when it passed OFPA. Instead, Herb Thyme merely asserts that “permitting Appellants /sic] to proceed with these claims would require state courts to usurp the role of the ‘governing State official’ who is authorized by USDA”to implement and enforce OFPA.(Resp. Br.at p. 28.) This assertion defies common sense because permitting this lawsuit to _ proceed would not in any way prevent the “governing State official” from investigating and enforcing Herb Thyme’s compliance with OFPA or from taking whatever action the official deems appropriate underthe law. In short: for Herb Thyme’s theory to prevail, this Court must ignore the USDA’s views and simply assume that Congress intended for OFPA to eradicate all preexisting consumer remedies—but somehow neglected to say so. As the U.S. Supreme Court once cogently observed, it would be “spectacularly odd” for Congress to eradicate all state law remedies without even “hintfing] at” such an intent, particularly where, as here, there is evidence that the federal government was aware of state enforcement activity in the area. (Lohr, supra, 518 U.S. at p. 491.) This Court should 20 decline Herb Thyme’s invitation to adopt such a “spectacularly odd” interpretation of OFPA. (/bid.; see also Wyeth, supra, 555 U.S. at p. 575 {noting Congress’s “silence on the [preemption] issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness”]; Farm Raised Salmon, supra, 42 Cal.4th at p. 1178 [“If Congress intended to permit states to enact identical laws on the one hand, but preclude states from providing remedies for violations those laws on the other, ‘its failure to even to hint at it is 399spectacularly odd.’” (citing Lohr, supra, at p. 491)].) C. Ms. Quesada’s Claims Are Consistent with OFPA’s Regulation of “Split Operations” Herb Thyme fares no better by arguing this lawsuit undermines federal purposes because OFPA addresses “precisely the co-mingling issues” raised in this case. (Resp. Br. at pp. 14-15, 33-34.) Herb Thyme has not identified a single way in which a jury verdict in favor of injured consumers would undermine OFPA’s comingling regulations. This is not surprising because the regulations cited by Herb Thyme banprecisely the activity at issue in this lawsuit — the mixing of organic and nonorganic products. Thus, for example, NOP regulations require each organic producerto develop “an organic system plan” that, among other things, describes “the 21 management practices and physical barriers established to prevent co- mingling oforganic and non-organic products on a split operation... .” (7 C.F.R. § 205.201(5), italics added.) NOP regulations also require “an organic handling operation [to] implement measures necessary to prevent the co-mingling of organic and nonorganic products... .” (Id. at § 205.272(a), italics added.) And the NOP provides for annual inspections of organic facilities to determine their compliance with federal standards, including the prohibition on co-mingling of organic and nonorganic foods. Ud. at § 205.403, italics added.) This lawsuit affirmatively supports these provisions by seeking to hold Herb Thyme liable for conduct expressly prohibited by OFPA. If anything, lawsuits like this one strongly complementand reinforce this federal regime by creating an additional incentive for producers to comply with OFPA’s dictates. There is no conflict here of any sort, let alone one sufficient to overcome the strong presumption against preemption of state laws that applies here, where “Congress has legislated in a field traditionally occupied bythestates.” (Altria Group, Inc. v. Good (2008) 555 U.S. 70, 77; see also Farmed Raised Salmon, supra, 42 Cal.4th at p. 1077; In re Aurora Dairy Corp. Organic Milk Marketing and Sales Litig. (8th Cir. 2010) 621 F.3d 781, 794 [presumption against preemption applies in case involving OFPA].) 22 Becausethere is no actual conflict here, Herb Thyme makes one up out of whole cloth. After reciting the comingling regulations, Herb Thyme insists that because “fa] certified operator’s entire operation is subject to review and inspection,” (Resp. Br. at p. 33, italics in original), this lawsuit necessarily conflicts with OFPA. This argument fails because there is nothing in this lawsuit that would interfere with the “review and inspection” of organic facilities like Herb Thyme.It is worth repeating that a jury verdict finding Herb Thymeliable in this case would not nullify its organic certification or prevent it from selling organic goodsto the public. Nor would such a verdict stop organic inspectors from inspecting and reviewing Herb Thyme’s facility. The only thing that would change as a result of this lawsuit is that Herb Thyme would rightfully be forced to compensate consumers whopurchasedits fraudulently mislabeled product. D. Herb Thyme Misreads Existing OFPA Preemption Cases. Herb Thyme is also wrong in claiming that existing case law regarding OFPA’s preemptive scope supports its position. In reality, case law supports the conclusion that there is no conflict between this lawsuit and OFPA. 1. Aurora Dairy is distinguishable because it involved a direct attack on the dairies’ organic certification. Herb Thymeinsists incorrectly that this case is “on all fours with” the Eight Circuit’s conflict-preemption ruling in Aurora Dairy, supra, 621 23 F.3d 781. (Resp. Br. at p. 29.) Unlike this case, the Aurora Dairy plaintiffs were directly attacking the federal certification of the organic dairies at issue — a fact that made all the difference in the Eighth Circuit’s view. The Aurora Dairy plaintiffs alleged that the milk, though it all came from certified organic producers, was not “organic enough” and did not meet federal standards. Importantly, prior to the suit being filed, the USDA had “proposed revoking Aurora’s organic certification,” but ultimately decided not to after working out a consent agreement with Aurora that resolved the agency’s concerns. (Aurora Dairy, supra, 621 F.3d at p. 789.) The class action lawsuit in that case directly challenged the USDA’s decision by arguing the certifications should have been revoked andthat Aurora should not have been permitted to label its milk as organic. The Eighth Circuit found conflict preemption because the suit directly “attack[ed] Aurora’s certification,” and would therefore undermine “the role of the certifying agent” and “deeply undermine” OFPA’s goal of establishing national standards for consumerproducts. (/d. at p. 797.) This case is different. In stark contrast to Aurora Dairy, the claims in this case do not attack the “organic-ness” of the organic herbs grown by Herb Thyme;rather, this case challenges Herb Thyme’s practice of mixing those organic herbs with nonorganic herbs and then selling the mixture as “100% Organic.” These blends were not “being labeled as organic in accordance with the certification,” as was the milk in Aurora Dairy, supra, 24 631 F.3d at p. 797 (italics added). This key distinction strips Aurora Dairy of its relevance here. This lawsuit cannot “undermine the role of the certifying agent”(id. at p. 797) because it is not challenging Herb Thyme’s certification at all. Instead, this case merely challenges Herb Thyme’s practice of covertly comingling organic and nonorganic herbs. Herb Thyme’s certification will not be affected by this lawsuit regardless of the outcome. Nor does this lawsuit “come[] at the cost of the diminution of consistent [organic] standards” (Aurora Dairy, supra, 631 F.3d at p. 796) because, unlike in Aurora Dairy, a victory for consumers in this case would not prevent Herb Thyme from labeling its organic herbs as “100% Organic”; rather, this lawsuit merely challenges Herb Thyme’s practice of labeling comingled herbsas “100% Organic.” Finally, unlike in Aurora Dairy, this lawsuit will not result in an “increase in consumer confusion and troubled interstate commerce.” (Aurora Dairy, supra, 631 F.3d at p. 796.) To the contrary, this lawsuit will, if anything, increase consumer confidence in the organic marketplace by stopping unscrupulous organic producers from using federal preemption as a shield against their obligation to compensate defrauded customers. Forall 25 of these reasons, Aurora Dairy cannotbear the weight placed on it by Herb Thyme.” 2. Herb Thyme’s reliance on Al] One God and Brown is misplaced. Herb Thymeargues its interpretation of Aurora Dairy is supported by two “well reasoned authorities interpreting OFPA preemption.” (Resp. Br. at p. 32.) The cases cited by Herb Thyme, however—All One God Faith, Inc. v. The Hain Celestial Group, Inc. et al. (N.D.Cal. Aug. 8, 2012, No. C 09-3517 SI), 2012 WL 3257660 (“All One God’), and Brown v. Hain Celestial Group, supra, 2012 WL 3138013—do notsupport its position. First, All One Godhasno bearing on this case because the product at issue, unlike here, complied with the relevant federal organic standard. (See All One God, supra, 2012 WL 3257660 at p. *11.) The All One God plaintiffs alleged the “organic” product at issue violated the “reasonable consumer” standard because “consumers expect that organic products have ” Herb Thyme oversimplifies the bases upon which Ms. Quesada has distinguished Aurora Dairy by focusing on the “split” operation aspect of this case. (Resp. Br. at p. 33.) This misses the point, which is that this case, unlike Aurora Dairy, does not challenge Herb Thyme’s ability to sell its certified organic herbs in accordance with its organic certification and, as a result, does not run afoul of OFPA. Nor does it matter that some of the illegal handling activities may have “actually occurred on [Herb Thyme ’s] organic farm.” (Resp. Br. at p. 34, italics in original.) It does not matter whetherthe illegal activities occurred on an organic farm or a conventional farm; either way, this lawsuit does not offend federal purposes becauseit neither “attacks” Herb Thyme’s organic certification nor seeks to disrupt OFPAstandards. 26 no ‘synthetic’ ingredients or ‘petrochemical compounds.’” (/bid.) The relevant OFPA regulations, however, “acknowledged that ‘petrochemicals,’ like other synthetics, are eligible for use in organic products if the material appears on the National List [of approved ingredients.” (/d.) In other words, plaintiffs challenged the use of an “organic” label on products that met OFPA’s organic standards. In light of this conflict with OFPA regulations, the court declined to exercise jurisdiction because “[p]laintiffs’ challenge to defendants’ labeling would . . . potentially creat[e] a conflict with [federal organic] standards .. . .” (/d.) But this holding has no bearing here because, unlike A// One Goa’s products, Herb Thyme’s herbs are not “organic” within the meaning of OFPA. Because the claimsin this case exactly mirror federal requirements, the conflict that concerned the court in All One Godis not presenthere.'° Herb Thyme’s reliance on Brown, supra, 2012 WL 3138013, is even more obviously misplaced. According to Herb Thyme, Brown “embraced Aurora’s preemption argument as correct, and ruled that ‘on its face, OFPA’s preemption provision bars . . . state organic certification requirements’ concerning food products.” (Resp. Br. at p. 32, quoting '° Herb Thyme’s reliance on All One Godis also misplaced because the district court relied on the Ninth Circuit’s decision in POM Wonderful LLC v. Coca-Cola Co., which has been reversed by the U.S. Supreme Court. (POM Wonderful LLC v. Coca-Cola Co. (2014) 134 S.Ct. 2228.) 27 Brown, supra, at p. *17].) However, the Brown court actually rejected the argument that OFPA preempts claims like Ms. Quesada’s, finding that OFPA did not “creat[e] a regulatory vacuum that guts state consumer protection laws.” (/d. at p. *17; accord id. at p. *9 [analyzing Aurora Dairy at length and holding that OFPA “did not expressly preempt state tort claims, consumer protection statutes, or common law claims”(italics added)].)’' 3. Jones v. ConAgra Foods Inc. is squarely on point. Herb Thymealso fails in its attempt to discredit Jones v. ConAgra Foods, Inc. (N.D.Cal. 2012) 912 F.Supp.2d 889, the only case to address the relationship between OFPA and COPA. Herb Thymeattacks Jones for 29its “remarkabl[e]” misreading of Aurora Dairy and its apparently “backwards” reasoning. (Resp. Br. at p. 32.) But it is Herb Thymethat gets it backwards by completely mischaracterizing the Jones holding. The Jones court quite correctly interpreted Aurora Dairy as having “upheld the dismissal of claims involving the organic certification of the dairy farm.” (Jones, supra, 912 F.Supp.2d at p. 894, italics in original, quoting Aurora Dairy, supra, 621 F.3d at p. 796.) Jones also held, however, '' The court did not reach the issue of implied conflict preemption because it had not been raised by the parties. See also id. at * 12 (noting that “the court already has determined that OFPA does not preempt Plaintiff's claims.”). 28 that the same conclusion did not apply to claims for labeling food products as “organic” when they contain “disqualifying ingredients” and therefore do not comply with federal regulations. This holding—that Aurora is limited to cases where the claims at issue are directly attacking an organic certification—is exactly right. To support its argument, Herb Thymeincorrectly cites a section in Brown that discusses the defendant's arguments, not the court’s actual holding. (Resp. Br. at p. 32, citing Brown, supra, 2012 WL 3138013 at p. *8.) The actual holding in Brown rejected express preemption of any state consumer protection claims, even for organic food products. (See Brown, supra, at p. *9 [“OFPA expressly preempts state certification requirements but does not expressly bar state law claims ... . [s]o long as the compositional requirements at issue did not conflict with those set forth in OFPA”].) In short, Herb Thyme’s characterization of the most relevant case law lacks any persuasive authority. Its primary case—Aurora Dairy— merely stands for the proposition that claims directly attacking an organic certification are impliedly preempted by OFPA. Here, however, the claims do not attack certification and merely seek to enforce state law requirements mirroring federal law. There is no basis for finding implied conflict preemption. 29 Ill. THE PRIMARY JURISDICTION DOCTRINE DOES NOT FORM AN ALTERNATE’ BASIS FOR’ AFFIRMING DISMISSAL Herb Thymealternatively asks this Court to affirm dismissal of this action on primary jurisdiction grounds.'? This argument fails for two independent reasons: (1) primary jurisdiction is not a basis for dismissal under California law (South Bay Creditors Trust v. General Motors Acceptance Corp. (1999) 69 Cal.App.4th 1068, 1081); and (2) even if it were, dismissal would be inappropriate because resolution of this case does not require agency expertise. Regarding the former, the primary jurisdiction doctrine “is a ‘prudential’ one, under which a court determines that an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry, rather than by the judicial branch.” (Clark v. Time Warner Cable (9th Cir. 2008) 523 F.3d 1110, 1114.) Under California law, primary jurisdiction is not a proper basis to dismiss an action, but only for a ' In the Court of Appeal, Herb Thyme argued issues of abstention, exhaustion of administrative remedies, and primary jurisdiction as if they are interchangeable. But these are fundamentally different doctrines with fundamentally different results. (General American Tank Car Corp. v. El Dorado Terminal Co. (1940) 308 U.S. 422, 433.) As the record below demonstrates, Herb Thyme did not raise abstention or exhaustion issues before the Trial Court. (AA at pp. 056-058, 182-83.) Abstention and exhaustion are not purely legal issues and, therefore, these alternative doctrines are not properly raised for the first time on appeal. (Kashmiri v. Regents of University ofCalifornia (2007) 156 Cal.App.4th 809, 829.) 30 motion to stay pending ongoing administrative proceedings. (See Miller v. Superior Ct. (1996) 50 Cal.App.4th 1665, 1677 [“A stay of proceedings, with the trial court directed to retain the matter in its docket” is the appropriate remedy under California’s primary jurisdiction doctrine], citing Farmers Ins. Exchange v. Super. Ct. (1992) 2 Cal.4th 377, 401; Cundiff v. GTE California, Inc. (2002) 101 Cal.App.4th 1395, 1412 [“The [primary Jurisdiction] doctrine does not preclude judicial consideration of the case, but rather suspends judicial action pending the administrative agency’s views”]; Wise v. Pac. Gas & Elec. Co. (1999) 77 Cal.App.4th 287, 295-96.) Herb Thymecites nothing in the record to show that such an on- going administrative proceeding exists, or has ever existed, nor did Herb Thymefile a motion for stay. Thus, the relief Herb Thyme requests from this Court—dismissal, presumably without prejudice, pending administrative review—is unavailable under California law. Moreover, the primary jurisdiction doctrine is inapplicable to this case because resolution of Ms. Quesada’s claims will not require specialized agency expertise. Primary jurisdiction “is to be used only if a claim involves an issue of first impression or a particularly complicated issue Congress has committed to a regulatory agency.” (Clark, supra, 523 F.3d at p. 1114.) This case involves no such issue. Petitioners allege that Herb Thyme misled consumers by mixing conventionally-grown herbs with its certified 31 organic herbs and then labeling the mixture “100% Organic.” False and misleading advertising claims such as these are “within the conventional competence of the courts” and do not require the application of any expertise unique to that administrative agency. (Cundiff v. GTE, supra, 101 Cal.App.4th at p. 1413 [“The subject of this suit . . . is deception-- defendants’ alleged intentional or negligent misrepresentation about the true nature of their equipment rental charges. This is not a topic about which the commission would have more expertise than the trial court, or even as much expertise”]; see also Nader v. Allegheny Airlines (1976) 426 USS. 290, 305 [“The standards to be applied in an action for fraudulent misrepresentation are within the conventional competence of the courts, and the judgmentofa technically expert body is not likely to be helpful in the application of these standardsto the facts of this case”].) Resolution of this lawsuit does not present a novel or complicated issue, but merely enforces what OFPA and California law already require: that 100% of herbs labeled “100% Organic” be grown on certified organic farm. Absent a novel, specific issue that must be resolved by an administrative agency, even the most comprehensive regulatory scheme and robust administrative oversight will not compel application of the primary jurisdiction doctrine. (See Prospect Medical Group, Inc. v. Northridge Emergency Med. Group (2009) 45 Cal.4th 497 [permitting a private right of action without reference to administrative agency even though claim was 32 based upon a specifically regulated practice within the agency’s Jurisdiction]; Ticconi v. Blue Shield of California (2008) 160 Cal.App.4th 528 [“reject[ing] any suggestion that a private party cannot sue to enforce underlying laws when those laws provide for enforcement by a public officer”]; Arce v. Kaiser Foundation (2010) 181 Cal.App.4th 471 [reversing dismissal of class action where the underlying claim was based on a violation of the Mental Health Parity Act, even where the regulatory agency had a mechanism in place for challenging coverage disputes].) Indeed, Herb Thyme’s same arguments for application of the primary jurisdiction doctrine to false “organic” claims was considered and promptly rejected in Jones, supra, 912 F.Supp.2d at pages 898-899: “Notwithstanding Defendant’s discussion at the motion hearing of preservatives and firming agents, the Court concludes that this case is far less about science than it is about whether a label is misleading.” The same conclusion applies with equal force here. Lastly, while judicial economy is an important factor in considering whether to refer claims to an administrative body, (South Bay Creditors Trust, supra, 69 Cal.App.4th at p. 1083), the Trial Court’s referral of this case to the USDA will waste considerable time and resources and offers no recourse for injured consumers like Ms. Quesada. Any primary jurisdiction analysis requires careful consideration of “the extent to which a referral would delay rather than expedite resolution of the case, and the adequacy of 33 [administrative] remedies for the claims at issue.” (bid.) While Ms. Quesada seeks restitution and injunctive relief, an administrative proceeding could result in a possible revocation of Herb Thyme’s organic certification and a maximum civil penalty of $10,000. (7 U.S.C. § 6519.) Accordingly, prior resort to an administrative agency will provide norelief for Californians who purchased Herb Thyme’s counterfeit products and will only delay Ms. Quesada’s rightto a jury trial at needless cost to all parties. For all of these reasons, the Court should reject Herb Thyme’s alternate grounds for affirming dismissal of this action. /// /// /// /// /// /// /// /// /// /// /// /// /// 34 CONCLUSION For the foregoing reasons, this Court should find that Plaintiff- Petitioner and Appellant Michelle Quesada’s claims against Defendant- Respondent Herb ThymeFarms,Inc. are neither preempted nor subject to primary jurisdiction. DATED:October 14, 2014 Respectfully submitted, LAW OFFICE OF RAYMOND P. BOUCHER RAYMOND P. BOUCHER MARIAL. WEITZ WHATLEY KALLAS, LLC Alan M. Mansfield PUBLIC JUSTICE,P.C. Leslie A. Brueckner JOHNSON & JOHNSON LLP Neville Johnson Counselfor Plaintiff-Petitioner and Appellant, MICHELLE QUESADA 35 CERTIFICATE OF WORD COURT I, Maria L. Weitz, hereby certify pursuant to Rule of Court 8.520(c)(1) that this Petitioner’s Reply Brief on the Merits was produced on a computer, and that it contains 8,241 words, exclusive of tables, this Certificate, and the proof of service, but including footnotes, as calculated by the word count of the computer program usedto prepare this brief. Executed October 14, 2014, at Los Angeles, California. Maria . Weitz 36 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 444 S. Flower Street, 334 Floor, Los Angeles, CA 90071. On October 14, 2014, I served true copies of the following document(s) described as PETITIONER’S REPLY BRIEF ON THE MERITSonthe interested parties in this action as follows: SEE ATTACHED SERVICE LIST _ +BY OVERNIGHT DELIVERY:I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed in the Service List and placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box ofthe overnight delivery carrier. I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Executed on October 14, 2014, at Los AngeJey, California. 4 UA Yeo vyC7 SERVICE LIST Neville Johnson, Esq. JOHNSON & JOHNSON LLP 439 N. Canon Drive, Suite 200 Beverly Hills, CA 90210 Tel: 310-975-1080 Fax: 310-975-1095 Email: njohnson@jjllplaw.com I Copy Alan M. Mansfield, Esq. WHATLEY KALLAS, LLC 10200 Willow Creek Road Suite 160 San Diego, CA 92131 Tel: 619-308-5034 Fax: 855-274-1888 Email: alan@clgca.com 1 Copy Leslie A. Brueckner PUBLIC JUSTICE,P.C. 555 Twelfth Street, Ste. 1230 Oakland, CA 94607 Tel: 510-622-8205 Fax: 510-622-8155 Email: [brueckner@publicjustice.net I Copy Appellate Coordinator Office of the Attorney General Consumer Law Section 300 South Spring Street Los Angeles, CA 90013-1230 I Copy Mark D. Kemple, Esq. GREENBERG & TRAURIG, LLP 1840 Century Park East, 19" Floor Los Angeles, CA 90067 Tel: 310-586-7700 Fax: 310-586-7800 Email: kemplem@gtlaw.com 1 Copy Angela L. Diesch, Esq. GREENBERG TRAURIG, LLP 1201 K Street, Suite 1100 Sacramento, CA 95814 Tel: 916-442-1111 Fax: 916-448-1709 Email: diescha@gtlaw.com 1 Copy Hon. Kenneth R. Freeman Los Angeles Superior Court Central Civil West District Department 322 600 S. Commonwealth Avenue Los Angeles, CA 90005 I Copy F. Paul Bland,Jr. PUBLIC JUSTICE,P.C. 1825 K Street, NW Suite 200 Washington, D.C. 20006 Tel: 202-797-8600 Fax: 202-232-7203 Email: pbland@publicjustice.net I Copy