Second Case Filed in Two Weeks to Safeguard Organic Integrity

April 15, 2015 (Portland, Oregon)—Yesterday, Center for Food Safety (CFS), Center for Environmental Health, and Beyond Pesticides filed a new federal lawsuit challenging the U.S. Department of Agriculture (USDA) National Organic Program’s (NOP) failure to follow the law in making a substantial rule change to the USDA organic standard. At issue is a contaminated compost guidance released by USDA, which weakens the long-standing prohibition of synthetic pesticide contaminants.

The plaintiff organizations are jointly represented by legal counsel from CFS and the Crag Law Center. The filing follows on the heels of a lawsuit filed by CFS last week over a similarly unlawful rule change to the organic sunset process, which regulates temporary synthetic chemical exceptions in organic production.

“In this case USDA decided to unlawfully ignore vital public participation and transparency requirements while undermining the organic standard, creating a new loophole for pesticides,” said George Kimbrell, CFS senior attorney. “Worse, this decision is part of a larger USDA pattern and practice of decision-by-fiat. We will not let it continue.”

Prior to the new contaminated compost guidance, organic regulations expressly prohibited fertilizers and compost from containing any synthetic substances not included on organic’s National List of Allowed and Prohibited Substances.  According to Ralph Bloemers, staff attorney for the Crag Law Center “the new guidance radically changes organic requirements, allowing organic producers to use compost materials treated with synthetic pesticides.” The USDA made this rule without the required rulemaking process, usurping the public’s right to ensure USDA activities are consistent with the Organic Food Production Act.

“Consumers want healthier choices and have a right to expect that the organic label insures that organic food was produced without harmful pesticides,” said Michael Green, executive director of Center for Environmental Health. “By allowing chemical residues to sneak into organic production through this undemocratic, back-door rule, the USDA is recklessly putting the integrity of the organic seal at risk.”

“The organic market is driven by consumer trust in an organic process that respects the historical commitment to public consultation and the legal requirement for public hearing and comment,” said Jay Feldman, executive director of Beyond Pesticides and a former National Organic Standards Board (NOSB) member. “We are taking action to ensure the integrity of the regulations that guide organic production.”

The Organic Foods Production Act (OFPA) requires that producers are responsible for identifying sources of feedstocks used in compost to ensure that only allowable plant and animal materials are used. The new NOP guidance violates OFPA by allowing green waste in compost tocontain pesticide residues. 

“Public participation in governmental decision making is the hallmark of organic food production,” said Dr. Lisa J. Bunin, organic policy director at Center for Food Safety.  “It’s also what ensures government accountability in maintaining and enhancing organic integrity throughout the entire supply chain.”

Plaintiffs allege that the USDA’s decision weakens the integrity of organic food production, not only by creating inconsistent organic production standards but also by undermining the essential public participation function of organic policy-making. Since USDA never subjected the contaminated-compost decision to formal notice and public comment rulemaking, USDA failed in its duty to ensure that its regulation is consistent with the OFPA and the standards set forth for approving the use of synthetic substances.