Organic Farming Rules Contested in Court

     SAN FRANCISCO (CN) - Uncle Sam butted heads with organic food groups Thursday, urging a federal judge to dismiss claims that it illegally changed its review process for substances used in organic farming.

The Center for Food Safety and 13 organic food groups sued the Department of Agriculture in April, claiming the government changed a key provision of the Organic Foods Production Act (OFPA) without public input or sufficient notice.

The law previously required that synthetic materials be removed from the list of approved organic farming substances every five years, unless two-thirds of the National Organic Standards Board voted to reapprove them.

The law's sunset provision was changed in 2013 so that nonorganic materials remain on the list unless the board votes them off.

During a motion to dismiss hearing Thursday, Department of Justice attorney M. Andrew Zee said the plaintiffs failed to allege any specific government action that caused harm or injury and so lack standing to bring their claims.

"We have no allegation linking their alleged procedural injury to any substantive action by the USDA to approve or renew any particular substance," Zee said.

Plaintiffs' attorney Paige Tomaselli replied that the agency's revision of the rules threatens the interests of her clients and denied them the opportunity to comment on the contested Sunset Notice.

Tomaselli pointed to a 2005 ruling by the First Circuit in Harvey v. Veneman, which found that the plaintiff suffered a concrete injury sufficient to establish standing, in a claim that parts of organic regulations were inconsistent with OFPA standards.

Zee said the Harvey case lies outside the Northern District of California's jurisdiction, and that it predates more recent cases, which require that claims cite a specific injury to establish standing.

In its July 17 motion to dismiss , the government urged the court to abide by the Ninth Circuit's 2010 ruling in Wilderness Society v. Rey, which rejected the notion that the loss of an opportunity to comment establishes a concrete or particularized injury.

The plaintiffs cited a specific consequence of the revised procedure in their Aug. 7 opposition to the USDA's motion to dismiss. They claimed that the synthetic chemical aqueous potassium silicate, which makes food less digestible and nutritious, remains on the list of approved substances for organic farming because of the Sunset Notice.

During the hearing, Tomaselli said the USDA's revised policy runs contrary to what Congress intended when it passed the OFPA in 1990.

"Congress intended the organic program to work that way - to reduce the number of synthetic substances on the national list," Tomaselli said.

After about 20 minutes of debate, U.S. District Judge Haywood Gilliam concluded the hearing and said he would issue a ruling as soon as he can.

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