Metropolitan News-Enterprise


Thursday, April 15, 2010


Page 1


C.A.: Suit Over ‘Organic’ Certification Not a SLAPP


By SHERRI M. OKAMOTO, Staff Writer


An action seeking to enjoin a trade organization from certifying beauty and personal care products as meeting the group’s standards as “organic” was not a strategic lawsuit against public participation, the First District Court of Appeal has ruled.

In a 2-1 decision, Div. Five on Tuesday allowed the suit filed by the makers of Dr. Bronner’s Magic Soaps against Organic And Sustainable Industry Standards Inc.—known as OASIS—to proceed.

Dr. Bronner’s contended that all its lotions, hair rinses, shampoos, hair conditioners, shaving gels and balms are manufactured and advertised as “organic” or made with “organic” ingredients in accordance with voluntary criteria promulgated by the U.S. Department of Agriculture’s National Organic Program, established under the Organic Foods Production Act of 1990.

Under the NOP criteria, a personal care product labeled “organic” must contain at least 95 percent organically produced ingredients, excluding water and salt, and cannot contain any cleansing or moisturizing agents made of synthetic petrochemicals or petrochemical compounds. Processes such as hydrogenation and sulfation are not permitted to produce such agents.

According to Dr. Bronner’s complaint, filed in San Francisco Superior Court, OASIS was developing a more lenient standard, which would allow competing beauty and personal care product manufacturers who met this lesser threshold to advertise their wares with the “OASIS Organic” certification mark.

Dr. Bronner’s alleged that OASIS’ certification constituted an unfair and unlawful business practice and false and deceptive advertising since consumers would be misled with respect to the products’ ingredients. It requested that OASIS be permanently enjoined from certifying as “organic” any product for sale within the state of California that could not be labeled as such under the NOP criteria.

OASIS moved to strike Dr. Bronner’s claims as chilling its right to free speech, arguing that it was being sued for articulating and publishing its opinion “as to what makes a personal care product ‘organic,’ ” but the trial court denied the motion.

Writing on appeal, Justice Terence L. Bruiniers agreed that Dr. Bronner’s cause of action did not arise from acts in furtherance of OASIS’ constitutional right of petition or free speech on a matter of public interest, which would subject it to a special motion to strike under Code of Civil Procedure Sec.425.16(b)(1).

“[W]hile OASIS’s articulation and dissemination of a standard regarding what makes a personal care product ‘organic’ may constitute an exercise of its right of free speech on a matter of public concern, we do not agree that OASIS’s certification of commercial products—the activities that Dr. Bronner seeks to enjoin—are in furtherance of that speech,” he said.

Bruiniers reasoned that the affixation of the “OASIS Organic” seal on a product “does not include any discussion of what the standard is, so as to encourage or contribute to public debate on the issue,” and that it was not necessary for OASIS to certify individual products in order for it to express its general opinion about what constitutes an “organic” personal care product.

He opined that the “OASIS Organic” certification was not activity directed to public discussion of organic standards in general, but was “only speech about the contents and quality of the product” designed to “facilitate commerce” in those products, and so Sec. 425.16(b)(1) was inapplicable.

The justice then turned to Dr. Bronner’s cross-appeal, which asserted that the trial court had erred in finding that OASIS’ actions did not fall within the statutory “commercial activity” exception in the anti-SLAPP legislation, Sec. 425.17(c).

That section provides that the anti-SLAPP law’s protections are not available in “any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services” based on statements made about those goods or services.

Since the Legislature had declined to include “ ‘someone acting on behalf of’ a person primarily engaged in the business of selling or leasing goods or services” in the statute, as “it easily could have,” Bruiniers concluded that the courts could not expand the scope of the statute to encompass OASIS since it was a nonprofit trade association which did not produce or manufacture any cosmetic or personal care products.

Presiding Justice Barbara J. R. Jones joined Bruiniers in his decision, but Justice Mark B. Simons dissented, arguing that OASIS’ role in the certification process should have been considered protected speech.

Simons posited that the formulation of the OASIS standard “may influence not only the definition of organic as applied to personal care products, but it also may play a role in the federal government’s decision whether to leave the NOP criteria voluntary or to encourage the development of further nongovernmental standards for organic personal care products” and would therefore contribute to the public discussion on what constitutes an “organic” product. 

“The OASIS Organic seal, applied only after approval by an independent inspector, provides useful consumer information and promotes the OASIS definition of organic, a topic of substantial public interest,” he said.

Additionally, given the role certification marks play in informing consumers, Simons contended, the message that a party independent of the producer has confirmed the product met a particular standard should be entitled to protection.

The case is All One God Faith, Inc. v. Organic And Sustainable Industry Standards, Inc., 10 S.O.S. 2023.


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