Cornucopia Institute files lawsuit against the USDA

The organic-industry watchdog, said it, along with two organic farmers, brought the complaint​, in an effort to challenge how two members of the 15-member board were appointed, changes made to the board's decision process and to protect the standards behind the organic label.

The board develops and oversees the list of prohibited natural substances and allowed synthetic additives that can be used in organic items like organic feed, the group said.

Bringing a lawsuit was a ‘last resort’ for the group, said Mark Kastel, senior farm policy analyst and co-founder. Now the group is hoping to see the case go to trial or have their concerns addressed.

A macro-goal of the lawsuit is to strengthen the market for organic feed produced in the US, because there may be questions about the nature of imported organic feed, he told FeedNavigator.

“What we’re challenging legally is the independence of the board from corporate agribusiness,” ​he said. “If we had a more independent board, and they stepped up to fill the roll prescribed by Congress, the only benefit would be if we see better and more aggressive enforcements of the organic regulations.”​

The current actions of the board may raise questions for consumers about the validity of the organic label, said Kastel. “We need to fight very hard to maintain the image of the organic label as the gold standard,”​ he added.

“From feed grower, to livestock producer, to the marketers – everyone is enjoying a higher price, but that only works if the consumer buys it,”​ he said. “We have to make sure there’s a high degree of comfort in [their] doing that.” ​

Lawsuit details​

The lawsuit was filed in the US District Court for the Western District of Wisconsin and names both the USDA and US Secretary Tom Vilsack, in his official role, as defendants, according to case documents.

By appointing two non-owners or operators of organic farms to seats set for organic farmers, the USDA has damaged the balance of the group and risks damaging the credibility of the board and the work it does, according to the court documents. Instead, two members of companies that sell, but do not grow, organic products were appointed.

“Defendants’ conduct resulted in inappropriate influence over the NOSB and left the NOSB without the viewpoint balance required by the OFPA [Organic Foods Production Act of 1990] in violation of the Federal Advisory Committee Act (“FACA”),”​ the group said in court documents.

Organic producers could be financially damaged if customers lose faith in the organic label and stop buying organic products, it said.

“Farmers and producers of organic foods have an interest in ensuring the integrity of USDA’s standards, as those standards intimately affect the business models of organic farms,” ​the group said in court documents. “The American people have a right to trust that food certified as organic is free of inappropriate or inadequately reviewed synthetic substances that do not comport with the OFPA.”  ​

Additionally, changes made to how the list of approved synthetic substances is maintained were reportedly done without proper notice, the group said in court documents.

“Under this original Sunset Rule, substances on the National List were automatically removed from the list after five years, unless a two-thirds majority of the NOSB voted to retain the substance,” ​according to court documents. “In 2013 USDA issued another legislative rule, the Sunset Notice, under which USDA unilaterally altered the Sunset Review rules without engaging in the required notice and comment process. This Notice changed the Sunset Review rules so that substances up for review automatically remain on the National List in perpetuity, unless a subcommittee first recommends its removal and then two-thirds of the NOSB votes to remove the substance.”​

Since the rule changes, items that would not have once met the criteria to stay on the list have continued to be allowed for use in organic production, the group said.

The board also has allegedly changed its voting method to make it harder to determine how members vote, the group said.

The Institute is asking for the court to find that the USDA has violated the OFPA and FACA; remove the two members in question; require the USDA to appoint members meeting the statutory requirements; and remove the items that were allowed to remain on the approved substance list through the altered procedures, it said in case documents.

It is also asking to be awarded fees and costs of bringing the case to court.