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Judge refuses to dismiss USDA organic lawsuit

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A federal judge has rejected the USDA’s request to dismiss a lawsuit alleging the agency unlawfully changed how synthetic substances are evaluated for organic production.

Last year, a group of 14 organic and environmental organizations filed the lawsuit against USDA, arguing the agency has effectively made it harder to remove synthetics from the list of substances approved for organic farming.

The USDA claimed the organizations lacked the legal standing to file the lawsuit, but U.S. District Judge Haywood Gilliam Jr. in San Francisco has disagreed with that argument and is allowing the litigation to proceed.

Gilliam ruled that it’s plausible the plaintiffs will be harmed by the USDA’s policy change, which they say has allowed more than 20 synthetic substances to continue being used in organic agriculture.

The dispute centers on USDA’s decision in 2013 to change the five-year “sunset process” for synthetic substances approved for organic farming.

Previously, synthetics were automatically eliminated from the list unless two-thirds of the 15-member National Organic Standards Board agreed they should stay on it.

Under the new policy, such substances automatically remained on the list unless two-thirds of the NOSB voted to remove them. Effectively, a synthetic could stay on the list even if a majority of up to nine board members voted to remove it.

“This gets at the heart of decision-making at the National Organic Standards Board,” said Will Fantle, co-founder of the Cornucopia Institute, a nonprofit organic industry watchdog.

Instead of allowing products to “sunset,” as intended by law, the USDA basically keeps them in the “land of the midnight sun,” Fantle said.

The plaintiffs say that consumers who pay more for organic food are harmed by the policy because they expect these crops to be produced with a minimal amount of synthetic substances.

Farmers are also hurt by the change because it undermines the integrity of the organic label, their complaint said.

Synthetic products were also intended to sunset to stimulate the creation of new organic replacements, said Fantle.

Beer companies were once allowed to brew with conventional hops, but the sunsetting of that input allowed for the growth of the organic hop industry, he said.

In 2015, the judge dismissed the plaintiffs’ original lawsuit because they only claimed to suffer future injury from the policy and they didn’t identify specific substances affected by the change.

In an amended complaint, the plaintiffs said that aqueous potassium silicate — a fungicide and insecticide — has remained on the list even though less than two-thirds of NOSB voted in favor of keeping it.

Under the previous policy, the chemical would have been eliminated from the list. The plaintiffs also identified 20 other synthetics that faced a similar situation.

“Specifics have been added to it,” said Fantle.

Gilliam’s latest ruling, which allows the revised lawsuit to proceed, is the second legal victory won by critics of USDA organic policies this year.

In June, U.S. District Judge Jacqueline Scott Corley, also of San Francisco, held that USDA unlawfully allowed plants treated with pesticides to be used in organic compost.

Both of these controversial USDA decisions were made under Miles McEvoy, administrator of the agency’s National Organic Program, who has been criticized by some organic groups for bowing to corporate pressure.

A spokesperson for USDA said the agency doesn’t comment on litigation but said the revised sunset policy “would help protect organic farmers and consumers” and had “increased public engagement and transparency.”

“USDA strongly supports organic agriculture, and is committed to establishing a level playing field that protects all organic farms and businesses,” he said in an email.


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