Administrative Law Judge Enjoins Organic Violator

Promiseland Livestock, LLC, one of the largest organic cattle producers in the nation, has been suspended from the organic market for four years, following the decision of a USDA administrative law judge.

Complaints were filed against Promiseland by the Cornucopia Institute as early as 2005, claiming that the operation was not feeding organic grain to its cattle, was selling fraudulent organic feed, and was "laundering" conventional cattle as organic.

The decision in the case focused on the requirements in the Organic Foods Production Act and the National Organic Program's regulations regarding availability of records. The Act requires that producers not only keep careful records, but also make them available for inspection by the certifying agent, the USDA, and the governing state officials. (7 USC 6506(b)(1)(B).) The regulations further state that records must "[f]ully disclose all activities and transactions" (7 CFR 205.103(b)(2)) and make such records available for inspection and copying by the proper authorities during normal business hours (7 CFR 205.103(c)). The decision notes that Promiseland initially bought time by switching certifying agents and then, despite a large amount of leniency on the part of the inspectors, simply refused to provide the records requested to the inspectors (pg. 5).

The decision states that "operation under the auspices of the USDA NOP is a privilege rather than a right," and that operators cannot defer inspection by invoking advice of counsel, requesting specific schedules of the documents to be inspected, or requiring that a corporate official be present at the inspection (pg. 12). (Side note: what kind of counsel says "no, don't comply with the very specific and clear regulation"?)

In sum, the ALJ, Peter M. Davenport, did not make a finding that Promiseland actually did the things of which it was accused. As he notes, however, the integrity of the NOP program relies almost entirely on record keeping and access by inspectors to those records. This case took several years to resolve, during which time who knows what sort of "conventional" food Promiseland managed to pass off as organic. Good on the USDA for finally taking action.

Pardon the riffing

El Dragon over at Fair Food Fight posted that companies like Monsanto should get ready to face suits from organic farmers whose crops are sullied by GMO seeds. Check out his discussion here.

One major issue, however. The suits from Monsanto against non-GMO-seed-using farmers were patent infringements - Monsanto literally owns the biologic composition of the crops that drifted into neighboring fields. Organic farmers have no such claim, as the organic nature of their crops is not patentable.

Therein lies the fundamental problem. There may not be a cause of action here - at least not one that I can think of. (Fellow legal folk, can you help me out?) We would probably have to look to tort law, but in what form? Negligence? There is not currently a duty of care for GMO farmers to protect the fields of their organic neighbors. Maybe nuisance? Trespass? A Canadian case made the argument for nuisance, negligence, trespass, and pollution under several Canadian statutes. (The case was thrown out for lack of class-action status on the part of the farmers.) I'm not sure if the common law claims would survive, however, or if there's a reasonable statutory provision that can be applied. Barring some form of statutory duty to protect your neighbors crop, or some form of explicit protection for organic farmers the courts may not find the necessary cause of action.

The government is getting tougher on GMOs. In September, the US District Court in San Francisco ruled that the USDA had failed to do the appropriate level of environmental investigation prior to approving Monsanto's Roundup-Ready sugar beets. “The potential elimination of farmers’ choice to grow nongenetically engineered crops, or consumers’ choice to eat nongenetically engineered food … has a significant effect on the human environment,” Judge White noted in the decision (p. 13). A plaintiff in the case, Frank Morton, is an organic sugar beet farmer. He noted that it costs $300 to test his crops for genetic modifications, and if he finds genetic anomalies, his crop becomes worthless. “This industry could be destroying the crop value of organic growers and organic growers would not have the slightest idea they were in danger until their stuff turned up contaminated,” he said. “This is why I made a stink about this.” The sugar beet decision follows a 2007 decision enjoining farmers from planting Roundup Ready alfalfa until complete environmental impact statements are filed. The District Court decision was upheld in the 9th Circuit.

This seems like the more viable route for legal action by organic farmers against GMO contamination. If the USDA begins actually applying NEPA in conducting EIS's of GMOs, including assessments of their potential for crop contamination, organic farmers should get better protection. It may take a few more individual court cases against specific crops under NEPA, however, before widespread EIS requirements are adopted by the USDA.

HFCS - natural?

Dave Babcock at Food Safety News wrote a great article about the legal fights over whether or not high fructose corn syrup is "natural" - and if it can be marketed as such. Babcock discusses the New Jersey case against Snapple's "all-natural" claim regarding their drinks. (Snapple has since switched to using sugar in their beverages.) Some might argue that a sweetener produced in a lab with the synthetic enzyme glucose-isomerase hardly seems natural. Since the FDA decided in 2003 to allow HFCS to fall into the "natural basket" - defined as "nothing artificial or synthetic has been added to a food that would not normally be expected to be in the food" (58 Fed. Reg. 2302, 2407) - Snapple claimed federal preemption of the NJ laws against fraud, and the District Court agreed that the FDA had created "field preemption." The 3rd Circuit overturned and remanded to the District Court. Check out the full article here.

Pesticide study controversy at EPA

The EPA has started requiring increased testing and analysis of various pesticides, including testing of the effects on the endocrine system of various chemicals used in herbicides and insecticides. According to Steve Owens, the assistant administrator of the Office of Prevention, Pesticides, and Toxic Substances, “After years of delay, EPA is aggressively moving forward by ordering the testing of a number of pesticide chemicals for hormone effects. These new data will be carefully evaluated to help identify potential hormone disruptor chemicals.”

The human endocrine system regulates hormone production, which impacts growth, metabolism, and reproduction. For all you'll probably ever want to know about it, click here.

The EPA has released a testing schedule for information from manufacturers of 67 chemicals over the next four months. It intends to use this information as a jumping-off point to determine if further testing of these chemicals is necessary. The testing, which will take place through the Endocrine Disruptor Screening Program, will eventually expand to include all pesticide chemicals. Here's the controversy, though - should manufacturer data really be used as the basis for determining if further study is necessary?

The Office of Management and Budget has issued an order allowing for the results of old industry studies to be substituted for new studies on the impacts of pesticide use on the human endocrine system. Over the course of the last decade, more than 1000 studies have been conducted on the impacts of pesticides on the endocrine system, but some scientists fear that this order may undermine the ability of those scientists to get their results into EPA considerations for possible regulation of the industry.

The EPA claims that a good scientist will be able to tell from the structure of the studies whether or not they're credible. The critical issue here, however, is not that the industry studies will be used at all, but the fact that they will be used in lieu of new studies from (presumably) neutral parties.

Federal Register Rundown, 10/27

The Department of Commerce has requested clearance from the Office of Management and Budget (OMB) under the Paperwork Reduction Act for continued collection of logbooks from fishing vessels in the Northeast region. The PRA is intended to decrease the burden of government paperwork on citizens and streamline the government's use of collected information. (44 U.S.C. 3501). NOAA is required to periodically collect and review logbooks under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801-1882) in order to properly manage the fisheries. 74 FR 55183.

The Agency for Toxic Substances and Disease Registry (ATSDR) of the Department of Health and Human Services has announced the final data priority needs for six toxic substances: the listed chemicals include guthion, a pesticide used primarily on fruit; dichloropropenes, a type of insecticide used primarily on nematodes; and diazinon, a widely used insecticide. Cresols are also mentioned (m-Cresol is used in certain herbicides). The announcement prioritizes "[s]tudies of developmental toxicity via oral exposure, with emphasis on neurodevelopmental toxicity" for guthion, and "[d]ose response data for acute-duration oral exposure" along with "[i]mmunotoxicity battery via inhalation exposure" for dichloropropenes. Diazinon research related to "[d]evelopmental toxicity data for oral exposure" is prioritized. This call for research is mandated by the Substance-Specific Applied Research Program (SSARP) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as amended by the Superfund Amendments and Reauthorization Act (SARA - 42 U.S.C. 9604(i)). The statute requires that ATSDR, along with the EPA create a list of hazardous pollutants, prepare toxological profiles, and ensure continued research programs on their effects. 74 FR 55240-42.

The USDA has amended the regulations for government procurement of certain products, including food-cleaning products. Anti-microbial cleansers for fruits, vegetables, and meats must now contain at least 53% "biobased" products under 7 C.F.R. 2902.45. "Biobased" products are defined by the USDA as those "determined by the Secretary of Agriculture to be a commercial or industrial product (other than food or feed) that is composed, in whole or in significant part, of biological products or renewable domestic agricultural materials (including plant, animal, and marine materials) or forestry materials." (Departmental Regulation 5023-002) 74 FR 55089-94.

In climate change news, the EPA has proposed to tailor the major source applicability thresholds for greenhouse gas (GHG) emissions under the Clean Air Act (CAA). 74 FR 55292.

Finally, the National Marine Fisheries Service has shut down fishing of Atka mackeral in the Western Aleutian District of the Bering Sea and Aleutian Islands management area (BSAI) (74 FR 55159) and fishing for Pacific ocean perch in the Western and Central Aleutian Districts (74 FR 55160-1). These restrictions are seasonally put in place to prevent the fisheries from exceeding their total allowable catches under Amendment 80 of the BSAI Fishery Management Plan.

Silk advertised as organic; complaint filed against Target

Some of us are lucky enough to have access to local, organic milk, but most people have to rely on grocery store chains for their dairy or alternative-dairy needs. Brands like Silk and Horizon have become the primary sources for organic milk and soymilk for most people, which is why it's concerning that these brands (both owned by Dean Foods WhiteWave division) have shifted a number of their products, including some Silk products, to "all-natural" instead of organic ingredients.

Studies have shown that consumers don't understand what "natural" food labels mean, and tend to believe that "natural" foods are regulated by the government. While the USDA does regulate "natural" labels for meat and poultry, the label on any other food is essentially meaningless. Additionally, consumers who believe that Silk is organic (as some of it is) may not look for the USDA organic seal on every carton they buy.

After WhiteWave shifted to conventional soybeans, Target continued to advertise Silk as organic in mailers to its consumers. As a result, the Cornucopia Institute has filed a complaint with the National Organic Program's (NOP's) Office of Compliance alleging violations of the Organic Foods Production Act (OFPA) and the National Organic Program's regulatory standards. You can read the complaint here.

The complaint cites to OFPA Sec. 2106(a)(1)(A), which states that "a person may sell or label an agricultural product as organically produced only if such product is produced and handled in accordance with this title;" (a)(1)(B), which states that "no person may... affix market information concerning... an agricultural product if such label or information implies, directly or indirectly, that such product is produced or handled using organic methods;" and Section 205.100(c)(1) of the NOP's regulations, which state that an organization that "[k]nowingly sells or labels a product as organic, except in accordance with the Act, shall be subject to a civil penalty of not more than $10,000 per violation."

Target claims that it's investigating the situation. The company still has litigation pending in the Eastern District of Missouri over allegations that it marketed its store brand, Archer Farms, as organic when the brand did not meet USDA standards. (While you need a Pacer subscription to view the original complaint, you can read the plaintiff lawyers' case summary here.)

In the meantime, Silk claims that its soybeans are "responsibly sourced" and touts its partnership with Conservation International. The company's statement on sourcing is not clear as to why some of its beans are organic and others are merely "natural." Unless the company commits to either producing organically or not, confusion will likely continue.