Public-interest group Cornucopia Institute has filed a lawsuit against Tom Vilsack in his capacity as Secretary of Agriculture alleging that he and the U.S. Department of Agriculture (USDA) violated the Organic Foods Production Act of 1990 by appointing “unqualified individuals” to the National Organic Standards Board (NOSB), which develops a list of synthetic substances allowed in the production of organic food, the National List of Allowed and Prohibited Substances. Cornucopia Inst. v. Vilsack, No. 16-0246 (W.D. Wis., filed April 18, 2016).

Federal law requires the composition of the NOSB to be “balanced and independent,” Cornucopia argues, but USDA “inappropriately influenced” the board in a number of ways, including (i) disbanding its Policy Development Subcommittee, (ii) allowing the self-appointment of the board’s co-chairperson, and (iii) removing the board’s ability to set its own work plan. “USDA’s unlawful meddling with the composition and rules governing the NOSB has created a NOSB hostile to the public interests it was created to protect,” the complaint asserts. Cornucopia also echoes arguments from a lawsuit it filed in partnership with several other consumer groups in April 2015 alleging that USDA violated the Administrative Procedures Act by not following the notice and comment process before changing the Sunset Review Rule, which dictates how often a substance is reviewed for removal from the National List. Details about the complaint appear in Issue 561 of this Update.

Cornucopia specifically challenges the appointment of Carmela Beck and Ashley Swaffar, who were employees of Driscoll’s and Arkansas Egg Company, respectively, at the time of their appointment. The organization asserts that their “votes do not align with the interests of owners or operators of organic farm operations over half the time” despite occupying seats reserved for people representing those interests. The complaint also quotes an email purportedly written by former NOSB chairperson Jean Richardson suggesting that the board change its voting process to “simple hand voting” “so that Cornucopia won’t be able to rate our voting record!”

Cornucopia seeks to vacate Beck and Swaffar from the NOSB and requests that the court orders the removal of substances affected by the Sunset rule change. “This type of appointment is part of a pattern of actions taken by the USDA to make the NOSB and the National Organic Program friendlier to the needs of big business interests,” Cornucopia’s co-director said in an April 19, 2016, press release. “Not only are farmers being denied their voice and right to participate in organic decisionmaking, but statistics illustrate the corporate representatives sitting in farmer seats have been decisively more willing to vote for the use of questionable and controversial materials in organics, weakening the organic standards.”