(CN) – The Center for Food Safety and 13 organic food groups lost another legal challenge this week to the U.S. Department of Agriculture’s process for reviewing substances used in organic farming.
In 2015, the groups sued then-Secretary of Agriculture Tom Vilsack in federal court over changes made to the Organic Foods Production Act.
Under the 1990 law, synthetic materials had to be removed from a list of approved organic farming substances every five years, unless there was a two-thirds vote by the National Organic Standards Board.
But a 2013 sunset provision change to the law made it harder for organic farmers to remove synthetic and non-organic materials from the approved list of substances, the groups claim in federal court in San Francisco.
Under the sunset provision, non-organic substances could remain on the list of approved substances, unless the 15-member National Organic Standards Board voted to remove them specifically.
One such substance on the approved list is aqueous potassium silicate, a chemical used to kill fungus and insects that “makes food less digestible and nutritious,” the groups said in their amended complaint.
The Department of Agriculture, the Agricultural Marketing Service and National Organic Program moved for summary judgment, and on Wednesday the judge found in their favor.
The sunset provision wasn’t a “reviewable final agency action,” Gilliam concluded, because it “does not itself alter any criteria or standards for the evaluation of a particular substance.”
The individual members of the National Organic Standards Board have discretion to approve or deny a substance being renewed on the list, and the federal agency has discretionary authority whether or not to accept them, Gilliam noted.
The judge also noted in the 11-page order that it “would be premature for the Court to intervene at this stage,” because “there is no binding outcome or definitive result” made by the sunset provision.
“Because Plaintiffs challenge a procedural change, as opposed to the agency’s final removal/renewal decision, the harms identified in [their amended complaint]—for instance, the unlawful inclusion of certain compounds in organic foods—may never materialize,” Gilliam wrote.
“[Their] desired outcome might even occur should the [Board] vote against renewing a harmful substance.”