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Lawsuit Challenges Requirement to Treat Raw Almonds with Toxic Fumigant

(Beyond Pesticides, September 15, 2008) One year after the USDA’s new regulation requiring raw almonds be treated with propylene oxide, a toxic fumigant recognized as a carcinogen by the U.S. EPA, went into effect, a group of fifteen American almond growers and wholesale nut handlers filed a lawsuit in the Washington, D.C. federal court on September 9th seeking to repeal the controversial USDA-mandated treatment program for California-grown raw almonds. The almond farmers and handlers contend that their businesses have been seriously damaged and their futures jeopardized by the requirement that raw almonds be treated with propylene oxide or steam-heated before they can be sold to American consumers. Foreign-grown almonds are exempt from treatment. They hope for a favorable decision in time to protect this year’s almond harvest.

“The USDA’s raw almond treatment mandate has been economically devastating to many family-scale and organic almond farmers in California,” said Will Fantle, the research director for the Wisconsin-based Cornucopia Institute. Cornucopia has been working with almond farmers and handlers to address the negative impacts of the USDA rule, including the loss of markets to foreign nuts. They also contend that the USDA requirement lacks scientific justification, does not address the unsustainable methods used on the industrial-scale almond orchards where the only two documented Salmonella outbreaks have occurred, and is misleading as the treated almonds can still be deceptively labeled as “raw.”

The USDA, in consultation with the Almond Board of California, invoked its treatment plan on September 1, 2007 alleging that it was a necessary food safety requirement. Salmonella-tainted almonds twice this decade caused outbreaks of food related illnesses. USDA investigators were never able to determine how salmonella bacteria somehow contaminated the raw almonds that caused the food illnesses but they were able to trace back one of the contaminations, in part, to the largest “factory farm,” growing almonds and pistachios on over 9000 acres.

The lawsuit contends that the USDA exceeded its authority, which is narrowly limited to regulating quality concerns in almonds such as dirt, appearance and mold. “The fact that almond growers were not permitted to fully participate in developing and approving this rule undermines its legitimacy,” said Ryan Miltner, the attorney representing the almond grower lawsuit plaintiffs. And even if the USDA sought to regulate bacterial contamination, Mr. Miltner argues that the questionable expansion of USDA authority demanded a full evidentiary hearing and a producer referendum, to garner public input -neither of which were undertaken by the USDA.

“For those of us who are interested in eating fresh and wholesome food, the USDA’s plan, to protect the largest corporate agribusinesses against liability, amounts to the adulteration of our food supply,” said Jill Richardson, a consumer activist.

Besides being a human carcinogen, propylene oxide is also believed to be a developmental, neuro- and reproductive toxicant. According to a propylene oxide document listed on the NIEHS website, “Consumer exposure may occur through ingestion of propylene oxide residues in foods from its use as an indirect food additive.” Yet it is not registered for use as a food processing agent in many parts of the world, including most of Europe, Africa, Asia, and Canada due to its toxicity.

Propylene oxide can also be an inert, or other, ingredient in commonly used pesticide products. “Inert” refers to ingredients in a pesticide formulation that have been added to the active ingredient to serve a variety of functions, such as acting as solvents, surfactants, or preservatives. However, the common misconception is that “inert” ingredients are physically, chemically, or biologically inactive substances. EPA has stated that “many consumers have a misleading impression of the term ‘inert ingredient,’ believing it to mean water or other harmless ingredients.” Because inerts are not “active” ingredients, they do not have to appear on label and are considered proprietary information on the part of the manufacturers. However, their supposed inactivity or inertness belies the fact that these ingredients frequently pose serious health risks of their own, and commonly make up the majority of the volume of a pesticide. The continued exemption on these inert ingredients highlights a flaw with the regulatory process for both active and inactive ingredients in pesticides.

The Cornucopia Institute suggests some alternatives to the rule, such as: (1) allowing for and clearly labeling unpasteurized almonds, effectively warning consumers of potential risk for food contamination while at the same time protecting consumer choice, and (2) exempting small-scale and organic almond growers and handlers – since they have never been a documented source of Salmonella or other contamination.

For more information, see www.cornucopia.org. For information on organic agriculture, see Beyond Pesticides’ Organic Food program page.


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