Back in Court on Organic Law
(Beyond Pesticides, July 5, 2006) Organic farmer and inspector Arthur Harvey, who won a federal court ruling in 2005 requiring USDA to comply with the Organic Foods Production Act (OFPA), was back in court on June 30, 2006 seeking an enforcement order requiring the department to revise its June 7, 2006 regulations with specific language prohibiting the use of synthetic processing aids in organically-labeled products. In November 2005, after the original decision in Harvey v. USDA, the Organic Trade Association, flanked by numerous companies that market organic products and over the resounding objection of original congressional sponsors and supporters of OFPA, secured an amendment to the law that repeals OFPA language requiring that food labeled organic can not be processed with synthetic “ingredients.”
In papers filed with the court, Mr. Harvey points out that while the amendment to OFPA repeals the law’s original language prohibiting in processed food labeled organic synthetic” ingredients” (now allowing up to five percent synthetic ingredients approved by the National Organic Standards Board), it retains the law’s prohibition on synthetic processing aids. With that said, Mr. Harvey says the USDA’s new regulation violates the law. For more background see Beyond Pesticides’ organic page.
Excerpts from the court filing follows:
Harvey, hereby moves the Court to enforce the Consent Final
Judgment and Order entered in this matter on June 9, 2005.(Docket No. 88). Specifically, with regard to Count 3 of the Complaint, the Judgment declared that the Department of Agriculture regulations found at 7 C.F.R.167; 205.600(b) and 605(b) were contrary to law and exceeded the Secretary’s rulemaking authority to the extent that they permit the addition of synthetic ingredients and processing aids in organically-labeled products. 7
was a list of six criteria for the evaluation of synthetic processing
aids or adjuvants for inclusion on the National List of otherwise prohibited
substances which may be used in organically-labeled foods. 7 C.F.R.
167; 205.605(b) was the
National List of synthetics permitted in organic processed products. It listed 38 synthetic substances, including ingredients, processing aids and other types of substances.1 The U.S. Court of Appeals for the First Circuit had held that both of these regulations contravened the Organic Foods Production Act’s prohibitions on the use of synthetic substances in the post-harvest handling of organic foods.
This Court ordered
the Secretary to publish final rules implementing the Judgment within
360 days. The Secretary purported to do so on June 7, 2006. 71 Fed.
However, the Final Rule did not remove or revise the regulations at 205.600(b) and 605(b) which this Court had invalidated. USDA claimed that a November 10, 2005 amendment to OFPA had restore[d] the NOP [National Organic Program] regulation for organic processed products containing at least 95 percent organic ingredients on the National List [sic] and their ability to carry the USDA seal. Therefore USDA is not revising the NOP regulations to prohibit the use of synthetic ingredients in processed products labeled as organic nor restrict [sic] these products’ eligibility to carry the USDA seal.
71 Fed. Reg. at 32804 (emphasis in original). While USDA here refers to synthetic ingredients, no changes were made to the regulation to prohibit the use of synthetic processing aids as required by this Court’s Judgment. As confirmed by a Q &A document accompanying the Final Rule, USDA is claiming that the entire list of synthetic substances found at 7 C.F.R. 167; 205.605(b) at the time of the Judgment has been restored by the OFPA amendment.
However, the OFPA amendment addresses only synthetic ingredients, and not synthetic processing aids. Thus, USDA is in violation of this Court’s Judgment due to its failure to revise its regulations to prohibit the use of synthetic processing aids in the handling of organically-labeled products.
USDA is also in violation of the Judgment because it has continued to permit the use in organic foods of numerous additional synthetic processing aids which are not listed in the regulation. A 2002 USDA Policy Statement currently posted on the NOP website permits the use in organic foods of food contact substances, as classified by the Food and Drug Administration, without review for inclusion on the National List. FDA currently classifies over 300 substances as permissible food contact substances for conventional (non-organic) foods,many of which are synthetic processing aids. USDA’s Policy allows use of these synthetic substances in the processing of organic foods without the statutorily-required review and recommendation by the National Organic Standards Board (NOSB) and placement on the National List. 7 U.S.C. 167; 6504(1), 6510(a)(1), 6517.
Plaintiff seeks an order enforcing the Judgment, requiring USDA to amend its regulations to prohibit the use of synthetic processing aids in organically-labeled products, and to revoke or revise its 2002 Policy Statement so that synthetic ingredients may not be used in organic foods without being on the National List and so that synthetic processing aids and other synthetic substances prohibited by OFPA not be permitted in the processing of organic foods.
This Court should order USDA to comply with the Consent Judgment by revising its regulations to prohibit the use of synthetic processing aids in organically-labeled products. Its Food Contact Substances Policy must be either revoked or revised 1) to require that all synthetic ingredients be on the National List and 2) to remove the authorization for the use of synthetic processing aids and other substances which contravene OFPA’s requirements for organic handling.