Customary Public Comment Process Averted to the Chagrin of Petitioners
Organic stakeholders have filed a lawsuit in federal court, maintaining that the U.S. Department of Agriculture (USDA) violated the federal rulemaking process when it changed established procedures for reviewing the potential hazards and need for allowed synthetic and prohibited natural substances used in producing organic food. A coalition of 15 organic food producers and farmer, consumer, environmental, and certification groups asked the court to require USDA to reconsider its decision on the rule change and reinstitute the agency’s customary public hearing and comment process.
When it comes to organic food production, consumers and producers expect a high level of scrutiny and are willing to pay a premium with the knowledge that a third-party certifier is evaluating compliance with organic standards. The burgeoning $35+ billion organic market relies heavily on a system of public review and input regarding decisions that affect organic production systems and the organic label. The multi-stakeholder National Organic Standards Board (NOSB)[1], appointed to a 5-year term by the Secretary of Agriculture, holds semi-annual meetings to solicit public input and to write recommendations to the Secretary on organic policy matters, including the allowance of synthetic and non-organic agricultural materials and ingredients.
The unilateral agency action taken to adopt major policy change without a public process, the plaintiffs maintain, violates one of the foundational principles and practices of OFPA —public participation in organic policy-making.
In adopting the Organic Foods Production Act of 1990 (OFPA), Congress created standards for organic certification and established the NOSB to oversee the allowance of synthetic materials based on a determination that they do not cause harm to human health and the environment and are necessary in organic food production and processing, given a lack of alternatives.
Under the law, a review of these materials takes place on a five year cycle, with a procedure for relisting if consistent with OFPA criteria. Plaintiffs in this case maintain that the USDA organic rule establishes a public process that creates public trust in the USDA organic label, which has resulted in exponential growth in organic sales over the last two decades.
At issue in the lawsuit is a rule that implements the organic law’s “sunset provision,” which since its origins has been interpreted to require all listed materials to cycle off the National List of Allowed and Prohibited Substances every five years unless the NOSB votes by a two-thirds majority to relist them. In making its decision, the NOSB is charged with considering public input, new science, and new information on available alternatives.
In September, 2013, in a complete reversal of accepted process, USDA announced a definitive change in the rule it had been operating under since the inception of the organic program without any public input. Now, materials can remain on the National List in perpetuity unless the NOSB takes initiative to vote it off the List.
In a joint statement, the plaintiffs, representing a broad cross-section of interests in organic, said:
We are filing this lawsuit today because we are deeply concerned that the organic decision making process is being undermined by USDA. The complaint challenges the unilateral agency action on the sunset procedure for synthetic materials review, which represents a dramatic departure from the organic community’s commitment to an open and fair decision making process, subject to public input. Legally, the agency’s decision represents a rule change and therefore must be subject to public comment. But equally important, it is a departure from the public process that we have built as a community. This process has created a unique opportunity within government for a community of stakeholders to come together, hear all points of view, and chart a course for the future of organic. It is a process that continually strengthens organic, supports its rapid growth, and builds the integrity of the USDA certified label in the marketplace.
The plaintiffs in the case, represented by counsel from Center for Food Safety, include: Beyond Pesticides, Center for Food Safety, Equal Exchange, Food and Water Watch, Frey Vineyards, La Montanita Co-op, Maine Organic Farmers and Gardeners Association, New Natives, Northeast Organic Dairy Producers Alliance, Northeast Organic Farmers Association Massachusetts, Ohio Ecological Food and Farm Association, Organic Consumers Association, Organic Seed Growers and Trade Association, PCC Natural Markets, and The Cornucopia Institute.
[1] The NOSB is a 15 member Board comprised of farmers, consumers, environmentalists, retailers, certifiers and food producers who advise the Secretary of Agriculture and the National Organic Program on all matters related to organic food and agriculture policy.
Joint Statement of Plaintiffs on USDA Change to Organic Rule without Public Comment
[The following joint statement concerning the lawsuit challenging the changes to the USDA’s Sunset policy is provided by Beyond Pesticides, Center for Food Safety, Equal Exchange, Food and Water Watch, Frey Vineyards, La Montanita Co-op, Maine Organic Farmers and Gardeners Association, New Natives, Northeast Organic Dairy Producers Alliance, Northeast Organic Farmers Association Massachusetts, Ohio Ecological Food and Farm Association, Organic Consumers Association, Organic Seed Growers and Trade Association, PCC Natural Markets, and The Cornucopia Institute.]
When a USDA rule implementing a section of the Organic Foods Production Act as important as the “sunset provision” is changed, why are we concerned about process? Since its origins, the sunset provision has been interpreted under the USDA organic rule to require allowed synthetic materials to cycle off the National List of Allowed and Prohibited Substances every five years unless the NOSB decisively votes by a two-thirds majority to relist them. In making its decision, the NOSB is charged with considering public input, new science, and new information on available alternatives. In September, 2013, without public comment, and in a complete reversal of the customary public process, USDA announced a change in the rule it had been operating under since the inception of the organic program, now allowing synthetic materials to remain on the National List unless the NOSB votes it off.
The organic label is built on a history and solid foundation of holding public hearings and soliciting extensive public participation. Many of us remember when the original proposed rule – which would have allowed GMOs, sewage sludge, and irradiation – resulted in a large outpouring of public input. It was important that the public had an opportunity to be heard before the rule was adopted. This opportunity created the public belief that the process behind the organic label was something that could be trusted. Ever since then, whether there was agreement on a decision or not, we could believe in a decision-making process and the high integrity of the organic label.
We are deeply concerned that the decision-making process on allowed synthetic materials in organic production and processing is being undermined by USDA. The lawsuit we are filing challenges the unilateral agency action on the sunset procedure for synthetic materials review, which represents a dramatic departure from the organic community’s commitment to an open and fair decision making process that is subject to public input. Legalistically, the agency’s decision represents a rule change and therefore must be subject to public comment. But equally important, it is a departure from the public process that we have built as a community. This process has created a unique opportunity within government for a community of stakeholders to come together, hear all points of view, and chart a course for the future of organic. It is a process that continually strengthens organic, supports its rapid growth, and builds the integrity of the USDA certified label in the marketplace.
The failure of USDA to comply with public hearing and comment procedures on the sunset rule change serve to usurp a process and label that the organic community began building long before the agency even recognized the legitimacy of organic systems as a viable and productive form of agriculture. It is our hope that the filing of our lawsuit will help set the process straight again, as the organic sector faces important questions of practices and synthetic material use in the future. We believe in the value of the public voice in that process, as we seek to grow the organic sector through public trust in the organic label.
We must take a stand together, and hold USDA accountable to the public process that helped establish and grow organic. If we do not hold the line on public process, we fear that in decision-after-decision, organic will lose its meaning. And, USDA will cause the demise of this treasured sector built by farmers, food producers, and the public at large, with a vision that embodies the values and principles that have made the organic label trusted and strong.
Consumers and farmers working together have helped to grow organic from the beginning. We are at a critical and historic moment when the stakeholders must lead in ensuring that our government respects what we have built and remains true to the public process and the legal framework that give organic its integrity.
