Protecting Organic Integrity

La Montañita Joins National Action to Challenge USDA Change to Organic Rule

By Paige Tomaselli, Center for Food Safety, and Robin Seydel

On April 8, organic stakeholders, including La Montañita Co-op, filed a lawsuit in federal court protesting a USDA change to the sunset of allowed synthetics in the organic rule, bypassing the public input process. The lawsuit maintains that the US Department of Agriculture (USDA) violated the federal rulemaking process when it changed established procedures for reviewing the potential hazards and need for allowed synthetic and prohibited natural substances used in producing organic food. La Montañita was honored to be one of only two co-ops nationally invited to join a coalition of 15 organic food producers and farmer, consumer, environmental, and certification groups asking the court to require USDA to reconsider its decision on the rule change and to reinstitute the agency’s customary public hearing and comment process.

Organic consumers and producers 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 health and safety food production standards. The burgeoning thirty-five plus billion dollar organic market relies heavily on a system of public review and input regarding decisions that affect organic production systems and the organic label.

The National Organic Standards Board (NOSB) is a 15-member multistakeholder board comprised of farmers, consumers, environmentalists, retailers, certifiers, and food producers who advise the Secretary of Agriculture and the National Organic Program on all matters related to organic food and agriculture policy. Board members, appointed to a 5-year term by the Secretary of Agriculture, hold semi-annual meetings to solicit public input and to write recommendations to the Secretary on organic policy matters, including the allowance of synthetic and non-organic agricultural materials and ingredients.

Maintain Public Process

The organic label is built on a history and solid foundation of holding public hearings and soliciting extensive public participation. Many of us remember when the originally proposed rule—which would have allowed GMOs, sewage sludge, and irradiation—resulted in a large outpouring of public input. It was important that the public had an opportunity to be heard before the rule was adopted. This opportunity created the public belief that the process behind the organic label was something that could be trusted. Ever since then, whether there was agreement on a decision or not, we could believe in the decision-making process and the integrity of the organic label.

We, the plaintiffs in this case, maintain that the USDA organic rule establishes a public process that creates public trust in the USDA organic label, which has resulted in exponential growth in organic sales over the last two decades. We believe the UDSA’s action to adopt a major policy change without a public process violates one of the foundational principles and practices of the Organic Foods Production Act of 1990 (OFPA), that of public participation in organic policy-making.

Sunset the Sunset Rule?

In adopting the OFPA, Congress created standards for organic certification and established the NOSB to oversee the allowance of synthetic materials, given a lack of alternatives, based on a determination that they do not cause harm to human health and the environment, and are necessary in organic food production and processing.

At issue is a rule that implements the organic law’s “sunset provision,” which since its origins has been interpreted to require all listed materials to cycle off the National List of Allowed and Prohibited Substances every five years unless the NOSB votes by a 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.

In September, 2014, without any public input, and in a complete reversal of accepted process, USDA announced a definitive change in the rule it had been operating under since the inception of the organic program. Now, a material can remain on the National List in perpetuity unless the NOSB takes initiative to vote it OFF the List.

The failure of USDA to comply with public hearing and comment procedures on the sunset rule change serves to usurp a process and label that the organic community began building long before the agency even recognized the legitimacy of organic systems as a viable and productive form of agriculture. It is our hope that the filing of our lawsuit will help maintain respect for the process as the organic sector faces important questions of practices and synthetic material use in the future.

Public Voice, Public Trust

We believe in the value of the public voice in the process, as we seek to grow the organic sector through public trust in the organic label. Consumers and farmers working together have helped to grow organic from the beginning. We are at a critical and historic moment when stakeholders must lead in ensuring that our government respects what we have built and remains true to the public process and the legal framework that gives organic its integrity.

In a joint statement, we the plaintiffs, who represent a broad cross section of interests in organic food, said: “We are filing this lawsuit today because we are deeply concerned that the organic decision making process is being undermined by USDA. The complaint challenges the unilateral agency action on the sunset procedure for synthetic materials review, which represents a dramatic departure from the organic community’s commitment to an open and fair decision making process, subject to public input. Legally, the agency’s decision represents a rule change and therefore must be subject to public comment. But equally important, it is a departure from the public process that we have built as a community. This process has created a unique opportunity within government for a community of stakeholders to come together, hear all points of view, and chart a course for the future of organic. It is a process that continually strengthens organic, supports its rapid growth, and builds the integrity of the USDA certified label in the marketplace.”

La Montañita Co-op is honored to be included in the coalition of plaintiffs and be represented by counsel from Center for Food Safety. The organizations filing the suit include: Beyond Pesticides, Center for Food Safety, Equal Exchange, Food and Water Watch, Frey Vineyards, La Montañita Co-op, Maine Organic Farmers and Gardeners Association, New Natives, Northeast Organic Dairy Producers Alliance, Northeast Organic Farmers Association Massachusetts, Ohio Ecological Food and Farm Association, Organic Consumers Association, Organic Seed Growers and Trade Association, PCC Natural Markets, and The Cornucopia Institute.

Taking a Stand

We must stand together, and in true democratic fashion, hold USDA accountable to the public process that helped establish and grow the organic food industry. If we do not hold the line on public process, we are concerned that in decision after decision, organic will lose its meaning. In taking this collaborative legal action we seek to prevent USDA activities from possibly causing the demise of this treasured sector, built by farmers, food producers, and the public at large, with a vision that embodies the values and principles that have made the organic label trusted and strong.

For more information, to see the lawsuit filing and to make a donation to keep organic strong, go to www.centerforfoodsafety.org.