U.S. District Judge Haywood Gilliam Jr. has refused to dismiss a lawsuit claiming that Secretary of Agriculture Tom Vilsack illegally changed a key provision of the 1990 Organic Foods Production Act. The plaintiffs allege that the change makes it harder to banish harmful products from the National List of Allowed Substances, noting that more than 20 synthetic materials remain on the approved list as a direct result of this change.
The Organic Foods Production Act allows certain synthetic substances to be used in organic farming when there is no organic alternative.
The original suit was filed by the Center for Food Safety, Beyond Pesticides, the Organic Seeds Growers and Trade Association, the Organic Consumers Association, and ten other dairy, vineyard, and farming groups in April 2015, after the modification was made to the Organic Foods Production Act without sufficient public notice.
"Plaintiffs sufficiently have alleged that these rules were intended to protect their concrete interests, and that it is 'reasonably probable' that the challenged action will threaten those interests," Gilliam wrote in an 11-page ruling.
Gilliam cited aqueous potassium silicate, an approved fungicide and insecticide, as an example of a substance whose continued presence on the list supports these claims. The food safety group alleged that the substance “makes food less digestible and nutritious.”
The Organic Foods Production Act originally required that the National List be reviewed every five years to remove any synthetic materials unless two-thirds of the 15-member National Organic Standards Board voted to reapprove them. In 2013, the law was changed to allow these materials to remain on the list unless the board voted specifically to remove them.
"It decreases the pressure on the organic community to find organic and nonharmful substitutes," said Sylvia Wu, an attorney at the Center for Food Safety, of the change.
The Center for Food Safety alleges that this modification was never submitted to public notice and input, which is required under the Administrative Procedure Act.
"I think the administrative record will hopefully demonstrate the substantive nature of the change and more of the facts surrounding why and how this rule change occurred," said Wu.
The Department of Agriculture stands by the decision to modify the law.
"These reforms help protect organic farmers and consumers by ensuring that any changes to organic rules, including adding to or subtracting items from the list of approved synthetic materials, are only made with a strong majority of the board," a USDA spokesman told Courtyard News. "We also increased public engagement and transparency, allowing more opportunity for public comment."
Farming image via Shutterstock