SAN FRANCISCO (CN) — A federal judge Thursday refused to dismiss a lawsuit claiming the Secretary of Agriculture illegally changed the process for reviewing substances used in organic farming.
After dismissing the lawsuit without prejudice in October 2015, U.S. District Judge Haywood Gilliam Jr. on Thursday found that food safety advocates adequately alleged harm in an amended complaint and set a case management conference to push the case toward trial.
The Center for Food Safety and 13 others sued Secretary of Agriculture Tom Vilsack in April 2015, claiming the government changed a key provision of the Organic Foods Production Act without sufficient notice or public input.
The law required that synthetic materials be removed from the list of approved organic farming substances every five years, absent a two-thirds vote by the National Organic Standards Board.
In 2013, the sunset provision was altered, allowing nonorganic materials to remain on the approved list indefinitely, unless the 15-member board specifically voted to remove them.
The Center for Food Safety said the change makes it harder to banish synthetic and harmful substances from the list, which damages the credibility of the USDA organic label.
Gilliam cited the continued presence of aqueous potassium silicate on the approved substances list as an example supporting the plaintiffs’ claims.
Aqueous potassium silicate is a synthetic chemical used as a fungicide and insecticide that “makes food less digestible and nutritious,” according to the plaintiffs’ amended complaint.
The food safety groups cited 20 other synthetics that remain on the approved list due to the USDA’s change to the sunset provision.
“Plaintiffs sufficiently have alleged that these rules were intended to protect their concrete interests, and that it is ‘reasonably probable’ that the challenged action will threaten those interests,” Gilliam wrote in an 11-page ruling.
Slyvia Wu, an attorney at the Center for Food Safety, said she believes discovery will show that the Department of Agriculture’s decision to change the process was a final agency action, which requires public notice and input under the Administrative Procedure Act.
“I think the administrative record will hopefully demonstrate the substantive nature of the change and more of the facts surrounding why and how this rule change occurred,” Wu said.
Gilliam set the case management conference for Sept. 20.
USDA spokesman Todd Atkinson did not immediately return a phone call seeking comment Thursday afternoon.
Plaintiffs include Beyond Pesticides, the Organic Seeds Growers and Trade Association, the Organic Consumers Association, and dairy, vineyard and farming groups.
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