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.

Josh Long, Associate editorial director, Natural Products Insider

April 9, 2015

3 Min Read
Farming, Environmental Group Sue USDA Over Changes in Organic Rule

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.

About the Author(s)

Josh Long

Associate editorial director, Natural Products Insider, Informa Markets Health and Nutrition

Josh Long directs the online news, feature and op-ed coverage at Natural Products Insider, which targets the health and wellness industry. He has been reporting on developments in the dietary supplement industry for over a decade, with a focus on regulatory issues, including at the Food and Drug Administration.

He has moderated and/or presented at industry trade shows, including SupplySide East, SupplySide West, Natural Products Expo West, NBJ Summit and the annual Dietary Supplement Regulatory Summit.

Connect with Josh on LinkedIn and ping him with story ideas at [email protected]

Education and previous experience

Josh majored in journalism and graduated from Arizona State University the same year "Jake the Snake" Plummer led the Sun Devils to the Rose Bowl against the Ohio State Buckeyes. He also holds a J.D. from the University of Wyoming College of Law, was admitted in 2008 to practice law in the state of Colorado and spent a year clerking for a state district court judge.

Over more than a quarter century, he’s written on various topics for newspapers and business-to-business publications – from the Yavapai in Arizona and a controversial plan for a nuclear-waste incinerator in Idaho to nuanced issues, including FDA enforcement of the Dietary Supplement Health and Education Act of 1994 (DSHEA).

Since the late 1990s, his articles have been published in a variety of media, including but not limited to, the Cape Cod Times (in Massachusetts), Sedona Red Rock News (in Arizona), Denver Post (in Colorado), Casper Star-Tribune (in Wyoming), now-defunct Jackson Hole Guide (in Wyoming), Colorado Lawyer (published by the Colorado Bar Association) and Nutrition Business Journal.

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