IN RE AURORA DAIRY CORP. ORGANIC MILK MARKETING

No. 09-2762.

621 F.3d 781 (2010)

In re AURORA DAIRY CORP. ORGANIC MILK MARKETING AND SALES PRACTICES LITIGATION. Kristine Mothershead, individually and on behalf of all others similarly situated; Leonie Lloyd, individually and on behalf of all others similarly situated, Appellants, v. Aurora Organic Dairy, doing business as Aurora Organic Dairy; Quality Assurance International, Inc.; Case Vander Eyk, Jr., doing business as Case Vander Eyk, Jr. Dairy; Publix Super Markets, Inc., Appellees, Robert Edward Koch, individually and on behalf of those similarly situated, Appellant, v. Aurora Dairy Corporation; Quality Assurance International, Inc.; Case Vander Eyk, Jr., doing business as Case Vander Eyk, Jr. Dairy; Publix Super Markets, Inc., Appellees, Maya Fiallos, individually and on behalf of all others similarly situated, Appellant, v. Aurora Dairy Corporation, doing business as Aurora Organic Dairy; Quality Assurance International, Inc.; Case Vander Eyk, Jr., doing business as Case Vander Eyk, Jr. Dairy; Publix Super Markets, Inc., Appellees, Rebecca Freyre, on behalf of herself and all others similarly situated; Fernanado Freyre, on behalf of himself and all others similarly situated, Appellants, v. Aurora Dairy Corporation; Quality Assurance International, Inc.; Case Vander Eyk, Jr., doing business as Case Vander Eyk, Jr. Dairy; Publix Super Markets, Inc., Appellees, Mona Still; Helen Phillips; Eve Hana; Jeanmarie Zirger; Kim King; Noelle Fincham; Oksana Jensen; Gabriela Waschewsky; Laurelanne Davis; Debbie Millikan; Joan Scheutz; Sandie Regan; Steve Shriver; Mary Elbertai; Eileen Ptak; Cynthia Roche-Cotter; Kristen Finnegan; Amy Forsman; Joy Beckner; Naomi Mardock; Olive Knaus; Liana Hoodes; Donita Robinson; Ilene Rachford; Lisa Hopkins; Caryn Poirier; Erin Diserens; Tammy Coselli; Debra Haines; Debra Schmidt; Hans Kueck, Appellants, v. Aurora Dairy Corporation, doing business as Aurora Organic Dairy; Quality Assurance International, Inc.; Case Vander Eyk, Jr., doing business as Case Vander Eyk, Jr. Dairy; Publix Super Markets, Inc., Appellees, Ilsa Lee Kaye, individually and on behalf of all others similarly situated, Appellant, v. Aurora Dairy Corp., doing business as Aurora Organic Dairy; Quality Assurance International, Inc.; Case Vander Eyk, Jr., doing business as Case Vander Eyk, Jr. Dairy; Publix Super Markets, Inc., Appellees, Patrick Hudspeth, individually and on behalf of a class of all others similarly situated; Caryn Hudspeth, individually and on behalf of a class of all others similarly situated, Appellants, v. Target Corp.; Quality Assurance International, Inc.; Case Vander Eyk, Jr., doing business as Case Vander Eyk, Jr. Dairy; Publix Super Markets, Inc., Appellees, Paul Bowen, individually and on behalf of all others similarly situated, Appellant, v. Wal-Mart Stores, Inc.; Quality Assurance International, Inc.; Case Vander Eyk, Jr., doing business as Case Vander Eyk, Jr. Dairy; Publix Super Markets, Inc., Appellees, Elizabeth Cockrell, individually and on behalf of a class of all others similarly situated, Appellant, v. Aurora Dairy Corporation, doing business as Aurora Organic Dairy; Quality Assurance International, Inc.; Case Vander Eyk, Jr., doing business as Case Vander Eyk, Jr. Dairy; Publix Super Markets, Inc., Appellees, Jim Snell; Steve Clark; John Barrera; Joseph Villari; Elida Gollomp; Claire M. Theodore; Elizabeth Banse, on behalf of themselves and all others similarly situated, Appellants, v. Aurora Dairy Corporation, doing business as Aurora Organic Dairy; Wild Oats Market, Inc.; Costco Wholesale Corporation; Safeway, Inc.; Wal-Mart Stores, Inc.; Quality Assurance International, Inc.; Case Vander Eyk, Jr., doing business as Case Vander Eyk, Jr. Dairy; Publix Super Markets, Inc.; Whole Foods Market Group, Inc., Appellees, Vicki M. Tysseling-Mattiace, individually and on behalf of a class of all other similarly situated, Appellant, v. Wild Oats Market, Inc.; Quality Assurance International, Inc.; Case Vander Eyk, Jr., doing business as Case Vander Eyk, Jr. Dairy; Publix Super Markets, Inc.; Whole Foods Market Group, Inc., Appellees, Margot A. West, individually and on behalf of a class of all others similarly situated; Richard E. Ehly, individually and on behalf of a class of all others similarly situated, Appellants, v. Aurora Dairy Corporation, doing business as Aurora Organic Dairy; Quality Assurance International, Inc.; Case Vander Eyk, Jr., doing business as Case Vander Eyk, Jr. Dairy; Publix Super Markets, Inc., Appellees, Channing Hesse, individually and on behalf of a class of all others similarly situated, Appellant, v. Costco Wholesale Corporation, a Washington corporation; Quality Assurance International, Inc.; Case Vander Eyk, Jr., doing business as Case Vander Eyk, Jr. Dairy; Publix Super Markets, Inc., Appellees, Hillary White, individually and on behalf of all others similarly situated; Lynn Michalson, individually and on behalf of all others similarly situated, Appellants, v. Aurora Dairy Corp., doing business as Aurora Organic Dairy; Publix Super Markets, Inc., Appellee, Fayetta Cowan, Appellant, v. Aurora Dairy Corporation, doing business as Aurora Organic Dairy; Wal-Mart Stores, Inc.; Publix Super Markets, Inc., Appellees, Nicolle DiSimone, individually and on behalf those similarly situated, Appellant, v. Aurora Dairy Corporation, doing business as Aurora Organic Dairy; Case Vander Eyk, Jr., doing business as Case Vander Eyk, Jr. Dairy; QAI, Inc., doing business as Quality Assurance International, Inc.; Does, 1-100, inclusive; Publix Super Markets, Inc., Appellees, Brenda Gallardo, Appellant, v. Aurora Dairy Corporation, a Delaware Corporation, doing business as Aurora Organic Dairy, Appellee, Shawn Riley, individually and on behalf all others similarly situated, Appellant, v. Safeway, Inc., Appellee, Theadora King, individually and on behalf of all others similarly situated, Appellant, v. Safeway, Inc., Appellee. Public Citizen, Inc.; The Center for Food Safety and Organic Consumers Association; The Humane Society of the United States, Amici on behalf of Appellants, The Organic Trade Association; Grocery Manufacturers Association, Amici on behalf of Appellees.

United States Court of Appeals, Eighth Circuit.

Filed: September 15, 2010.


Attorney(s) appearing for the Case

Craig R. Spiegel, argued, Seattle, WA, ( Don M. Downing , Gretchen Garrison , and Thomas K. Neill , St. Louis, MO, Elizabeth A. Fegan and Daniel J. Kurowski , Oak Park, IL, on the briefs), for Appellant.

Jay W. Connolly , San Francisco, CA, Jon P. Kardassakis , Los Angeles, CA, Mark S. Mester , of Chicago, IL, argued, ( Bryan D. LeMoine , St. Louis, MO, Mark S. Mester , Livia M. Kiser , Chicago, IL, Johnathan C. Miesen , Minneapolis, MN, and Patrick M. McCarthy , Ann Arbor, MI, on the briefs), for Appellees.

Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.


RILEY, Chief Judge.

In this appeal we are called upon to determine whether, and to what extent, the Organic Foods Production Act of 1990 (OFPA), 7 U.S.C. § 6501 et seq., preempts state consumer protection law. The OFPA establishes national standards for the sale and labeling of organically produced agricultural products, and creates a certification program through which agricultural producers may become certified to produce organic products. The OFPA also...

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