Legal Update

[This article was previously published in the winter issue of The Cultivator, Cornucopia’s quarterly newsletter.]

Federal Lawsuit Challenging USDA Power Grab Dismissed/Refiled
by Will Fantle, Codirector of The Cornucopia Institute

The legal maneuverings continue on the challenge to the unilateral changes implemented by the USDA to the process used to approve synthetic and non-organic materials allowed for temporary use in organics. Cornucopia and 13 other stakeholders contend that the changes to the “Sunset” process were consequential, arbitrary, and failed to provide an opportunity for essential public input.

On September 24, federal judge Haywood Gilliam, serving the northern district of California, brought the parties to the court for a dialogue. Gilliam had one question for the plaintiffs concerning an issue of legal “standing” and the harm being experienced by Cornucopia and the other plaintiffs. The attorneys from the Center for Food Safety responded to Gilliam’s concerns. In just nine minutes, the proceeding was over.

On October 9, Judge Gilliam dismissed the court challenge. In issuing his ruling, Judge Gilliam wrote: “Plaintiffs must identify an application of the sunset review procedures that threatens a concrete, particularized, injury in fact.”

The judge’s ruling did, however, leave the door open to a reworking of the complaint and its refiling. In legal terms, he dismissed the case “without prejudice.” This allowed the attorneys representing Cornucopia and the other plaintiffs to file an amended complaint, which was done on October 30.

Our attorneys documented at least one material remaining in use in organics, rather than prohibited from use, due to the USDA’s changes to the review process. This substance was cited in the initial complaint.

Now that the National Organic Standards Board (NOSB) fall meeting has concluded, a large group of additional synthetic and non-organic substances are part of the amended complaint. At the latest NOSB meeting, over 20 materials would have sunsetted from organic usage had the previous Sunset review process still been in use. Yet, under the new USDA format, these materials will remain in use, at least for another five years.

Many of these substances that would have failed reapproval are ingredients used in the processing of organic food, substances such as xanthan gum, mono- and diglycerides, non-organic konjac flour, and a number of food colorings made from pigments extracted from conventional fruits and vegetables. A few non-organic or synthetic substances used in crop and livestock practices also would have been removed from use, including aquatic plant extracts, algicide soaps, and ivermectin, a powerful, synthetic wormer for livestock. Cornucopia’s formal public comments to the NOSB outline our analysis and concerns regarding many of these substances.

The amended federal lawsuit asserts that the new Sunset process is a substantive rule change that injures organic consumers, farmers, and producers by weakening the integrity of the organic standards and degrading the quality of organically labeled food.

“We are extremely interested in pursuing this case to the fullest extent,” says Cornucopia Codirector Mark Kastel. “The arbitrary and capricious changes made to the approval process by the USDA for continued use of questionable synthetic materials—including many that were initially approved for use without a thorough and unbiased review—cuts to the core of integrity in organic food and agriculture.”

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