Court Rejects USDA Motion to Dismiss Lawsuit on Organic Change Rule

On Thursday September 10, a federal judge in the U.S. District Court for the Northern District of California, in a bench ruling, rejected the U.S. Department of Agriculture’s (USDA) motion to dismiss a federal lawsuit (Case3:15-cv-01690) that challenges the National Organic Program’s (NOP) failure to follow proper legal procedures in making a substantial rule change to the organic standard. This court ruling allows the case to move forward on the proper procedure and the importance of formal notice and public comment regarding the rules for organic food production.

The lawsuit, filed earlier this year by the Center for Environmental Health, Beyond Pesticides, and the Center for Food Safety (CFS), challenges the contaminated compost guidance released by USDA, which weakens the long- standing prohibition of synthetic pesticide contaminants. Prior to the new contaminated compost guidance, organic regulations expressly prohibited fertilizers and compost from containing any synthetic substances not included on organic’s National List of Allowed and Prohibited Substances. Plaintiffs allege that the USDA’s decision weakens the integrity of organic food production, not only by creating inconsistent organic production standards but also by undermining the essential public participation function of organic policy making under the Administrative Procedure Act (APA), federal law that establishes the procedures for public input into federal policy making. Since USDA never subjected the contaminated-compost decision to formal notice and public comment, the plaintiffs argue that USDA failed in its duty to ensure that its regulation is consistent with the Organic Food Production Act (OFPA) and the standards set forth for approving the use of synthetic substances.

This lawsuit is not the only noteworthy instance of procedural violations committed by the USDA;another lawsuit brought by 15 farm, consumer and certifier organizations raises a similarprocedural challenge to a rule change to the organic sunset process, which regulates synthetic chemical exceptions in organic production. In this case, the agency once again took unilateral action to adopt a major policy change without public process, an action plaintiffs maintain violates one of the foundational principles and practices of OFPA public participation in organic policy making and APA. The decision by the judge to allow the contaminated compost case to move forward signifies a commitment to upholding the procedures outlined in APA and OFPA, which plaintiffs maintain is central to the integrity of food labeled organic in the U.S.

The simple act of attempting to block a hearing on this procedural raises concerns about USDA commitment to overseeing the USDA organic program in a fair and open manner. The organic program has a long history of providing numerous opportunities for the public to weigh in on allowable practices and materials in organic production and has been central to building public trust in the organic certification program and the USDA certified organic food label. The National Organic Standards Board (NOSB) was set up by Congress to serve as an independent authority with unique and sole powers over organic standards. The board is intended to safeguard the integrity of the organic food label with independent authorities that operate outside the discretion of the USDA. The proposals of the NOSB, as a part of its ongoing review of practices and materials, are published for public comment twice a year before each meeting of the board.

Consumers, environmentalists, and farmers play a critical role in building and maintaining the integrity of the organic food label. A comment period on current proposals before the board is open now through October 8.

Priority issues before the Fall 2015 National Organic Standards Board

• Inerts. Beyond Pesticides opposes the proposal to annotate the listings for so-called inert ingredients to allow all chemicals listed on EPA’s Safer Chemical Ingredient List. The Crops and Livestock Subcommittees have proposed an annotation that would abdicate NOSB responsibility for reviewing “inerts.” So-called “inert” ingredients in pesticide products are neither chemically nor biologically inert. They are designed to enhance the pesticidal activity of pesticide products and can have toxic properties that do not meet the standards of the Organic Foods Production Act (OFPA). The NOSB should reject the proposed annotation change. The NOSB should (1) Tell NOP to implement the review plan approved unanimously by the board in 2012, using EPA’s Safer Choice Program as a resource, but not depending on its list (2) amend the listing to remove toxic nonylphenol ethoxylates (NPEs), and (3) amend the list with expiration dates for the remaining classes of “inerts.”
• Ancillary Substances. Beyond Pesticides opposes all three proposals on ancillary substances –microorganisms, pectin, and yeast — because they are inconsistent with OFPA and with the process adopted by the NOSB for review of ancillary substances. Ancillary substances –those ingredients within ingredients that generally do not appear on labels– must, according to both OFPA and NOSB policy, be reviewed according to OFPA criteria. Instead, the Handling Subcommittee appears to be simply grandfathering in those currently in these products, allowing toxic chemicals like formaldehyde to be added to organic food.
• Micronutrient Annotation. Beyond Pesticides opposes the annotation change proposed by the Crops Subcommittee (CS) because it encourages the use of synthetic micronutrients without empirical evidence to demonstrate need. While the CS correctly points to methods other than soil testing to document soil deficiency, we disagree with the intention of the CS to allow “proactive” use of synthetic micronutrients, which is inconsistent with the requirement to seek management and nonsynthetic options first.

Each of these issues fit a theme of breaking trust with the organic community, which is why it is so important for the public to help defend organic standards against USDA changes that will weaken the organic food label.

Your Voice Is Needed to Keep Organic Strong

You can go to Beyond Pesticides Keeping Organic Strong webpage to learn more about these and other substantive issues. Again, we ask that you submit a unique, personalized commenton as many issues and materials as you can by the October 8, 2015 deadline. For help crafting your comments, view Beyond Pesticides’ commenting guide.

All unattributed positions and opinions in this piece are those of Beyond Pesticides.