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Federal Court Requires Stricter Organic Rules on Synthetics, Non-Organic Ingredients, & Dairy Feed

Posted 1/28/05

Background of Federal Court Decision on Organic Standards Can Be Found at:

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>From <www.ota.com>
ANALYSIS OF THE DECISION ON JANUARY 26, 2005,
BY U.S. COURT OF APPEALS FOR FIRST CIRCUIT
BOSTON, MASSACHUSETTS
IN CASE OF
ARTHUR HARVEY v. ANN VENEMAN, SECRETARY OF AGRICULTURE
No. 04-1379

In his appeal to the Circuit Court, Mr. Harvey charged that seven provisions in the National
Organic Program (NOP) regulations, which the USDA implemented in October 2002, are not
consistent with the Organic Foods Production Act (OFPA). OFPA is the law Congress passed in
1990 that created the National Organic Program.

The Circuit Court has now issued its decision. In a 36-page opinion, it has agreed with Mr.
Harvey that three provisions of the NOP regulations are not valid, since they go beyond the legal
authority granted by OFPA:

The three NOP provisions that the Circuit Court has identified for change
are as follows:

§ The NOP regulations1 have allowed synthetic substances to be used in
organic processed foods on a limited basis. All of the synthetics allowed
have first undergone technical review by the National Organic Standards
Board. The Circuit Court has now ruled (at Opinion,
pages 19-22) that since a provision in OFPA bars synthetics in processed
foods,2 most of the synthetics that have been approved up to now would no
longer be allowed.

§ The NOP regulations have had a special transition rule that when a whole dairy herd is
converted to organic production, the herd is allowed to use only 80% organic feed for the
first nine months, switching to full organic feed after that.3 The Circuit Court has now ruled
(at Opinion, pages 29-32) that since a provision in OFPA requires all organic dairy animals
to receive organic feed for 12 months prior to the sale of milk or milk products,4 the special
rule for newly converted herds violates OFPA and must be discontinued.
1 7 CFR §§ 205.600(b) and 205.605(b).
2 7 USC § 6510(a).
3 7 CFR § 205.236(a)(2)(i).
4 7 USC § 6509(a)(3).2

§ The NOP regulations have not been so strict about requiring individual reviews by the
National Organic Standards Board for every non-organic ingredient used in organic
processed foods. The regulations have required individual reviews for synthetic and natural
non-agricultural ingredients, but have not required reviews for the other class of non-organic
ingredients, those that are agricultural products not "commercially available" in an organic
form. Those have been permitted in processed foods on a blanket basis.5 The Circuit
Court has now ruled (at Opinion, pages 10-13) that non-organic agricultural products should have individual reviews in order to be used in processed foods.6

Because the existing provision in the NOP regulations can support that interpretation,
the Circuit Court decision does not direct the USDA to replace the existing provision.
Instead the Circuit Court has directed the U.S. District Court in Portland, Maine, to issue a
declaratory judgment that will bind the USDA to use that interpretation. Following these rulings, the USDA has certain legal avenues available to challenge them. If it finds sufficient grounds, it could petition to have the case reheard in the Circuit Court. After judgment is entered, the USDA will have 45 days to submit such a petition. If the USDA takes an appeal, this would be to the U.S. Supreme Court. If the USDA decides not to take further legal action, the case will normally return to the U.S. District Court in Portland, Maine. That court will then order the USDA to issue new regulations to replace the provisions that the Circuit Court has found to be unlawful. These new regulations would be more restrictive on the organic food processing and dairy industries than
the current regulations. The USDA would need to draft and propose new regulations, receive public comment and then promulgate final regulations. This will therefore be an extended
process with the opportunity for public input. It is at this rulemaking stage that parties in
the affected parts of the organic community could submit comments on the need for appropriate
phase-in periods.

Ultimately the USDA would be obligated to adopt regulations that would conform to the
Circuit Court¹s decision as to the three provisions the court has found to be at odds with
OFPA. However, it would appear that these regulations could include reasonable phase-in
periods...