This month, Texas Attorney General Ken Paxton launched an investigation into major grocery chains’ use of chemical pesticides on produce labeled “organic” by the manufacturer. Paxton’s office expressed concern that the grocery chains may be deceiving consumers who base their purchasing decision on the belief that organic produce has not been treated with pesticides.
Link to Texas AG Investigation into Organic Produce Texas AG Investigation into Organic Produce
Before labeling produce as certified “organic,” a manufacturer must comply with regulations issued by U.S. Department of Agriculture (USDA), including limits on synthetic substances and pesticides. Central to the investigation is Produce Maxx, a chlorine-based pesticide commonly used in grocery stores. Although the U.S. Environmental Protection Agency (EPA) permits Produce Maxx to be sprayed on produce and considers it safe to consume, the USDA requires certified “organic” produce to have chlorine pesticides rinsed off before consumption.
The Texas AG’s office said it is concerned that grocery stores flout this standard by selling produce labeled by the manufacturer as “organic” but sprayed with Produce Maxx before being sold. According to the AG, customers may then unknowingly ingest the pesticides, relying on the “organic” label and believing the produce need not be washed before consumption.
Link to Pesticides, USDA Rules, and Consumer Disclosure Pesticides, USDA Rules, and Consumer Disclosure
In its press release, the AG’s office said grocery chains hide the presence of pesticides from customers and fail to provide instructions to wash organic produce. The investigation does not seek to prohibit the use of chemical pesticides but instead has focused on the disclosures made to the customer. Paxton said that if grocery stores continue spraying pesticides on organic produce, customers must see “clear signage” disclosing the need to wash pesticides off.
Link to Retailer Liability for Organic Labeling Claims Retailer Liability for Organic Labeling Claims
Unlike most labeling actions, the Texas AG’s office has focused on retailers, not manufacturers. Grocery chains do not control the “organic” label put on produce, but, according to Paxton, they do bear responsibility for the customer’s expectations about the organic produce sold in store. Retailers in any industry should consider whether their handling, display, and advertising of consumer products conflicts with the labels’ claims and underlying regulatory standards.
The Texas investigation marks a growing trend in regulating environmental and health-based advertising claims. In 2019, the Federal Trade Commission (FTC) reached a $1.76 million settlement with a personal care brand over deceptive claims that its products were “100% organic” and “vegan.” Since 2023, the Texas AG’s office has defended against challenges to the state’s heightened labeling requirements for plant-based “meat” products. Other consumer products have faced industry enforcement and class action suits over sustainability claims.
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