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.