Federal Court Dismisses Challenge to USDA Almond Pasteurization Rule
A federal court in the District of Columbia has determined that the U.S. Department of Agriculture (USDA) had the authority to and properly promulgated a rule “requiring that almonds produced domestically be pasteurized or chemically treated against bacteria.” Koretoff v. Vilsack, No. 08-1558 (D.D.C., decided January 18, 2012). So ruling, the court granted USDA’s motion for summary judgment. Further information about the challenge brought by U.S. almond growers appears in Issue 274 of this Update.
The almond rule was adopted in response to Salmonella outbreaks traced to
raw almonds in 2001 and 2004. USDA adopted it under the authority of the
Agricultural Marketing Agreement Act of 1937 and the California Almond
Marketing Order (Almond Order), promulgated in 1950. At issue in the dispute
between the U.S. almond growers and USDA was whether safety regulations
are encompassed by the law’s use of the term “quality,” over which USDA
specifically has regulatory authority. The court found the term undefined
and ambiguous and refused to limit its scope to “only an almond’s ‘inherent,
measurable attribute[s],’” as urged by the plaintiffs.
According to the court, “having rejected plaintiffs’ arguments that [the
statute] unambiguously forecloses the Secretary’s interpretation, the Court is
left to decide whether that interpretation is reasonable under Chevron step
two’s ‘highly deferential standard.’ The Court concludes that it is, and that the
Salmonella Rule does not exceed the Secretary’s authority under the [statute].”
Noting that the statute “authorizes the Secretary to intervene in the markets
for various agricultural commodities and products in order to ensure their
stable and effective functioning,” the court found it “apparent that Congress
gave the agency the flexibility it needs to respond to both general market
conditions and external threats, such as the Salmonella outbreaks in 2001 and
2004, which have the potential to cause significant market disruption.”
The court also found that USDA was not required to hold a formal rulemaking
hearing and producer referendum in promulgating the rule because it did not
amend the Almond Order; rather, it was promulgated under the authority of
the Almond Order. According to earlier rulings in the case, the Salmonella rule
eliminated the domestic raw almond market. The producer plaintiffs alleged
that “they lost both their expected profits from the premium price paid
for raw almonds and the return on investments they had made in production
equipment.” According to a news source, the plaintiffs are considering
whether “there are grounds for continuing this legal battle.” See The Grower,
January 26, 2012.
