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OCA and Environmental Groups Sue USDA to Enforce Strict Organic Standards

Environmental Groups Back Harvey Lawsuit

Organic Business News -December 2004 issue Vol 16 no 12

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A coalition of environmental and consumer groups supporting Arthur Harvey's lawsuit charged the USDA with failing to comply with the Organic Foods Production Act.

"Consumers expect that food labeled organic does not contain synthetics, and that dairy products come from cows that have been fed organic feed," they contended in their brief supporting Harvey's appeal. "Congress recognized that not all ingredients are yet available in organic form and the need for a transition to organic production. It sought to promote the marketing of products that contain some but not all organic ingredients without misleading consumers."

The brief was filed with the US Court of Appeals in Boston by the Organic Consumers Association, Sierra Club, Public Citizen, Inc., NOFA-Mass, John Clark, Merrill Clark, Anne Mendenhall, Greenpeace USA, and Waterkeeper Alliance. The Center for Food Safety has also filed a separate brief.

The Brief contends that the National Organic Program has failed to require individual decisions for each synthetic product suitable for the National List, and has not relied on the National Organic Standards Board to propose exemptions and give public notice for comment.

The NOP regulation fails "to assure consumers that organically produced products meet a consistent standard by engendering a multitude of standards as certifies each make their own determination as to whether ingredients are commercially available, instead of relying on the one National List and process for developing that was intended by the act," the brief states.

"USDA's blanket exemption harms producers, such as those represented by NOFA/Mass, by stunting or eliminating markets for organic ingredients," they argue. "Contrary to Congressional intent to foster the market for organic products, USDA's broad exemption puts many non-organic ingredients on the same footing as organic ones, without the proper National List procedures to determine whether organic ingredients are available and whether alternatives are appropriate."

In addition, John Clark, who is an organic cattle farmer, contended that an organic spice producer went out of business recently because the market was so weakened when food processors were able to get certification without using organic spices, according to the document.

The NOP was also accused by the groups of exceeding its authority by allowing products that contain between 70% and 90% organic ingredients.

"From a consumer point of view," the brief said, "the addition of another category of certified organic products adds confusion without adequate explanation of benefit, especially given the fact that Congress made provision for identification of organic ingredients without certification."

The groups argued that the NOP created an additional category of certified products without proper statutory authority, and put those products that are allowed by OFPA at a competitive disadvantage.

The groups argue that most consumers believe that synthetics are not used in organic production. "USDA's regulations permitting the use of synthetics in organically-labeled processed foods defy those expectations which had been established long before OFPA created a federal role in organic food production and labeling," the brief said.

They argued that NOP overstepped its authority by banning certifiers from giving advice to producers. "We believe this creates an unnecessary communications barrier that hurts both farmers and consumers," the brief said. "Often, the organic certification will determine the economic viability of a particular farming operation. Thus, farmers may need timely expert advice in order to meet certification standards."

The USDA allowance of 80% organic feed contradicts the intent of the law. The brief cited the fact that the USDA admitted this flaw and was supported by the magistrate judge that the 80% provision was an exception to OFPA. "When Congress has spoken clearly on a subject, USDA has no discretion to rewrite the statute making exceptions that dilute the standards of the Act," the brief said.

Seven Issues Cited in Harvey's Suit

Arthur Harvey's appeal to the US First Circuit Court of Appeals said the regulations issued by the National Organic Program are inconsistent with the Organic Foods Production Act and "weaken and dilute the organic standards".

Here are the key challenges in his case:

NOP cannot grant a blanket exemption from the National List for "any non-organically produced agricultural product" when it is not commercially available.

The NOP cannot allow the certification of products with less than 95% organic ingredients.

The NOP cannot allow synthetic ingredients in organically-labeled processed foods when OFPA forbids the addition of synthetic ingredients to processed foods.

Wholesalers and distributors who meet the definition of handlers and handling operations in OFPA cannot be excluded form the law.

Certifiers should be allowed to give free advice to their clients to help them overcome barriers to certification, even though they receive money from the clients.

Dairy animals cannot be fed 80% organic feed for the first nine months of the year prior to being sold as organic, because the law says that dairy animals must be fed organically produced feed for not less than 12 months prior to sale.
Certifiers should be allowed to use their own private certification seals when their standards exceed those of the USDA.