INSIDER Law
Farming, Environmental Group Sue USDA Over Changes in Organic Rule

Farming, Environmental Group Sue USDA Over Changes in Organic Rule

<p>The agency enacted an unexpected change that allows certain chemicals to be used unless a citizen board takes initiative to vote them off a national list, according to the Center for Food Safety, a public interest group whose lawyers are representing the plaintiffs. </p>

The U.S. Department of Agriculture (USDA) illegally changed the procedures that govern decisions to authorize the use and handling of certain chemicals in the farming and processing of organic foods, according to a lawsuit filed this week in federal court by groups representing consumers, farmers and environmentalists.

The agency enacted an unexpected change that allows certain chemicals to be used continually in organic products unless a citizen board takes initiative to vote them off a national list, according to the Center for Food Safety, a public interest group whose lawyers are representing the plaintiffs.

USDA’s so-called Sunset Notice on Sept. 16, 2013 “threatens the integrity of the National Organic Program, constitutes arbitrary and capricious actions on the part of the Agency, and must be corrected," the lawsuit declared.

A USDA spokesperson on Thursday referred requests about the complaint to the U.S. Justice Department. A Justice Department spokesperson said the agency is reviewing the lawsuit.  

While foods generally cannot be labeled as organic unless they are produced without the use of synthetic chemicals, the Organic Foods Production Act of 1990 (OFPA) carved out an exception under a process that begins with a federal advisory board, which is nominated by the Agriculture Secretary and is presently comprised of farmers, environmentalists and others.

The National Organic Standards Board (NOSB) first reviews each chemical based on various considerations including its impact on environmental and human health. Examples of synthetic substances that are permitted in organic farming and processing include electrolytes, vitamins and newspapers, according to USDA.

The OFPA specified that two-thirds of the entire board must vote in favor of recommending the use of a synthetic material, and the proposal must be forwarded to the Agriculture Secretary for a formal rulemaking in order to be placed on a National List, two members of Congress explained in an April 24, 2014 letter to Agriculture Secretary Tom Vilsack. The law set forth a sunset period in which any material on the National List is automatically removed after five years, unless the same procedures are followed within five years of the material’s initial adoption, Sen. Patrick Leahy (D-Vermont) and Rep. Peter DeFazio (D-Oregon) said.

But under USDA’s new policies, there is a presumption that all synthetic materials on the National List are automatically renewed, according to the letter. The change “turns the sunset policy of OFPA on its head," Leahy and DeFazio griped to Vilsack.  

The lawsuit said the initial decision to remove a material from the National List is entrusted to a subcommittee rather than the entire NOSB. Finally, the entire board must vote by a two-thirds majority to remove a material from the list, not renew it, lawyers in San Francisco with the Center for Food Safety wrote in the 26-page complaint.

“The failure of USDA to comply with public hearing and comment procedures on the sunset rule change serve to usurp a process and label that the organic community began building long before the agency ever recognized the legitimacy of organic systems as a viable and productive form of agriculture," the plaintiffs said in a joint statement.

The plaintiffs in the case include: Beyond Pesticides, Center for Food Safety, Equal Exchange, Food and Water Watch, Frey Vineyards, La Montanita Co-op, Maine Organic Farmers and Gardeners Association, New Natives, Northeast Organic Dairy Producers Alliance, Northeast Organic Farmers Association Massachusetts, Ohio Ecological Food and Farm Association, Organic Consumers Association, Organic Seed Growers and Trade Association, PCC Natural Markets, and The Cornucopia Institute.

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