Lawsuit Challenges U.S.D.A. Rule Change on Organic Farming


A coalition of grocers, seed growers and consumer and environmental advocates filed suit on Tuesday against the Department of Agriculture over a change it made to the process used to determine which substances may be used in organic farming.

In the suit, filed in Federal District Court for the Northern District of California, the group contends that the department violated procedures for federal rule-making when it changed the way nonorganic substances are approved for use in organic farming without holding a public hearing or seeking public comment.

“The U.S.D.A. unilaterally changed the process without allowing the organic community to give any input and, in doing so, violated the Administrative Procedure Act as well as the intent of the organic law,” said Paige Tomaselli, a lawyer at the Center for Food Safety, one of the plaintiffs.

Under the usda-organic

The law stipulated that such materials would “sunset,” or lose approval to be used in organic farming, after five years unless two-thirds of the members of the National Organic Standards Board, which alone is charged with recommending additions to the list, voted to keep them on the list.

The board spends a significant amount of time at its two annual meetings listening to farmers, consumer groups, companies with organic products and others air their opinions about whether substances should stay on the list. Food colorings, for instance, which were once almost exclusively artificial, are now widely available in organic form, and so many argue that they should be taken off the list.

In September 2013, the U.S.D.A. changed that process. It ruled that materials on the National List were to be reviewed by subcommittees of the board, not the entire board. The only time the full 15-member board considers a material is when a subcommittee recommends allowing it to sunset.

Moreover, a material may not be removed without the votes of two-thirds of the board. Previously, two-thirds of the board was needed to keep a material on the list.

“We’re now in the land of the midnight sun — the sun never sets,” said Mark Kastel, co-founder of the Cornucopia Institute, one of the plaintiffs. “Unless two-thirds of the board is motivated enough to take something off the list, everything stays on it in perpetuity.”

That, Mr. Kastel and others say, was not the intent of the organic law. In a letter last year to Tom Vilsack, the agriculture secretary, the authors of the organic law, Senator Patrick J. Leahy, Democrat of Vermont, and Representative Peter A. DeFazio, Democrat of Oregon, protested the change, saying it turned the sunset policy of the organic law “on its head.”

“This is a complete reversal of the statutory and long-standing policy on the burden of proof that has required a two-thirds majority vote in order to renew the material on the National List,” the lawmakers wrote.