Court Rules Consumers and Farmers Can Sue USDA for Weakening Standard That Allows Synthetics in Organic

Last week, a federal judge in the U.S. District Court for the Northern District of California rejected the U.S. Department of Agriculture’s (USDA) motion to dismiss a federal lawsuit (Case No. 15-cv-01590-HSG) that challenges changes to the rules that review the potential hazards and need for allowed synthetic and prohibited natural substances used in certified organic food production. Finding that plaintiffs had established both proper jurisdiction and a viable claim, this ruling allows the case to move forward on its merit. The court will now be able to review the substantive importance of formal notice and public comment regarding the rules for organic food production, which were changed dramatically by USDA in 2013.

Plaintiffs in this case, recognized by the court as “approximately a dozen advocacy and industry groups representing organic farmers, retailers, and consumers,” filed a complaint last April asking the court to require USDA to reconsider its decision on the rule change and reinstitute the agency’s customary public hearing and comment process. Specifically at issue in the lawsuit is a rule that implements the organic law’s “sunset provision,” which since its origins has been interpreted, under a common reading of the law, to require all listed materials to cycle off the National List of Allowed and Prohibited Substances every five years unless the National Organic Standards Board (NOSB) votes by a “decisive” two-thirds majority to relist them. In making its decision, the NOSB is charged with considering public input, new science, and new information on available alternatives to the allowed synthetic substances. Under the Organic Foods Production Act (OFPA), the Secretary may not allow the use of synthetic substances in organic production unless first approved by the NOSB.

In September 2013, without any public input, USDA completely reversed this long established process and announced a definitive change in the rule it had been operating under since the inception of the organic program. Under its new rule, a synthetic materials are allowed to remain on the National List in perpetuity unless the NOSB takes initiative to remove it from the List. The judge, agreeing with the plaintiffs, identified the change as significant, as it now requires a two-thirds vote to remove a substance from the National List, unlike the prior procedure which required a two-thirds vote to renew a substance. Furthermore, he acknowledged that the prior to the change in the rule that triggered this lawsuit, “USDA’s regulations required the NOSB to consider public comments and vote on” substances on the National List, a process that stands to be lessened or completely lost with USDA’s unilateral agency action to adopt this major policy change.

The judge also acknowledged plaintiffs’ allegations that USDA’s decision weakens “the integrity of the organic standards, degrading the quality of organically labeled food, and negatively affecting the personal health, economic, environmental, and consumer interests of Plaintiffs’ members” through its failure to allow 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 sunset decision to formal notice and public comment, 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 materials for the National List.

The opportunity to offer public comment on organic stands is historically important to organic consumers and farmers. When it comes to organic food production, consumers expect a high level of scrutiny and are willing to pay a premium with the knowledge that a third-party certifier is evaluating compliance with organic standards. The burgeoning $43 billion organic market relies heavily on a system of public review and input regarding decisions that affect organic production systems and the organic label.  In her declaration to the court, Beyond Pesticides board member Terry Shistar, Ph.D. stated that “USDA’s development and promulgation of the Sunset Notice . . . harms [her] interest in participating in the public process as outlined by the APA [Administrative Procedure Act],” and violates her “interest in ensuring that adequate procedures are in place to protect the integrity of organic food.” Statements like this from a diverse group of plaintiffs convinced the judge that the group had sufficiently “alleged that these rules were intended to protect their concrete interests, and that it is ‘reasonably probable’ that the challenged action will threaten those interests,” squashing arguments from the defendant (USDA) that plaintiffs had failed to state a claim upon which relief could be granted.

While the judge’s holding in this case is favorable to the plaintiffs, unfortunately this is not the only example of recent attacks to the integrity of the organic label. Another lawsuit recently decided in favor of plaintiffs Beyond Pesticides, Center for Food Safety and Center for Environmental Health challenged the National Organic Program’s (NOP) failure to follow proper legal procedures in making a substantial rule change that allows contaminants in compost. Though the final decision was a huge victory organic advocates, it unfortunately was not the end of the road for those fighting to maintain the integrity of the USDA label.

While the courts are understanding that recent actions by USDA violate the federal organic law, OFPA, it is critical that the public lets their elected members of Congress (U.S. Representative and Senators) how important organic integrity is and the importance of a strong standard in accordance with the law. To that end, Beyond Pesticides has created the campaign Save Our Organic, which outlines the USDA attack on organic and the importance of Congress protecting the integrity of organic standards. Send a letter to your member of Congress and Secretary of Agriculture Tom Vilsack. It is also important to let the companies that produce organic products know that strong organic standards are critical to public trust in the organic label and the growth of the organic market. Send a letter to companies that often support the weakening of organic standards.

Beyond Pesticides also tracks the decision of the NOSB and assists the public to engage in the public process on reviewing and updating organic standards. See the Keeping Organic Strong webpage to learn more about these and other issues and to find out what you can do to help uphold organic standards.

Beyond Pesticides advocates in its organic food program and through its Eating with a Conscience (EWAC) website choosing organic because of the environmental and health benefits to consumers, workers, and rural families. For more information on the benefits of organic agriculture, see Beyond Pesticides’ Organic Food program page.