Groups Challenge Change to Organic Law’s Sunset Provision

Several policy groups, including Food & Water Watch and the Center
for Food Safety, have filed a lawsuit challenging a U.S. Department of
Agriculture (USDA) procedural change in how ingredients are removed
from the National List, a list of synthetics exempted from the Organic
Foods Production Act (OFPA). Ctr. for Food Safety v. Vilsack, No.
15-1590 (N.D. Cal., filed April 7, 2015).

The National List catalogs synthetic and prohibited natural substances
that may be used in organic farming despite not being inherently organic
because the substances (i) have been determined by USDA not to harm
human health or the environment, (ii) cannot be replaced with an organic
alternative and (iii) are consistent with organic farming and handling.

The groups challenge a 2013 revision to the process for removing an
exempted substance from the National List. OFPA created a sunset
provision that removed substances from the list—thereby prohibiting
their use in organic farming—after five years unless two-thirds of the
National Organic Standards Board voted to keep them on the list.
Under the revised rule, a substance stays on the National List unless
two-thirds of the board votes to remove it. The groups argue that this
change reversed the original default expiration standard to one of default
retention. “We’re now in the land of the midnight sun—the sun never
sets,” a co-founder of plaintiff Cornucopia Institute told The New York
Times.

The lawsuit alleges that USDA violated the Administrative Procedure
Act by failing to provide sufficient public notice and comment before
the change took effect. The groups further allege that the rule creates
inconsistent organic standards and violates OFPA, and they seek a court
declaration in support of their arguments as well as an injunction barring
implementation of the revised rule. See The New York Times, April 7,
2015.

Issue 561