IS IT LEGAL TO SELL SEAFOOD AS "ORGANIC" IN U.S. MARKETS?

Organic food products are a substantial and growing market segment, but the U.S. has not  established any organic standards for seafood. As a result, U.S. aquaculture producers may seek to be certified under a foreign organic  standard and to advertise that status on their products. While these certifications and sales do not appear to violate foreign laws, t his study identifies potential liability for entities  selling aquaculture products as organic in U.S. markets under fede ral and state organic products law, federal food labeling  law, and state  unfair competition and consumer protection laws .

• Organic aquaculture label claims appear to violate the Organic Foods Production Act (OFPA), although the USDA has indicated that it will not enforce against such labels as long as they do not suggest that the product is USDA-certified. However, California's organic program does explicitly prohibit the sale of organic aquaculture and could face enforcement action there.
• Canadian law does not prohibit advertisement of products based on its organic certification,  and its new organic regulations allow properly-certified organic aquaculture products to bear the Canadian Organic Seal even when exported.
• Food product labeling must comply with the Lanham Act, which currently appears to  raise the potential for liability with respect to organic claims on seafood. These claims could give rise to claims by competitors under an unfair competition theory.
• State unfair competition and consumer protection laws could apply to organic aquaculture claims. Plaintiffs have asserted such claims in a variety of states, and courts have allowed them to proceed in the context of personal care products. While uncertain, it is possible that courts would also allow similar claims for organic seafood.

These findings suggest that entities marketing "organic" seafood may face a variety of legal challenges to the sale of their products.  As a result,  growers and  markets selling organic-labeled seafood products must carefully weigh the risk of liability against the benefits of making organic claims.