USDA sued over listing process for synthetic substances used in organic foods. (subscription to Law360 required)
- The U.S. Department of Agriculture (USDA) administers the National Organic Program (NOP), which includes standards for “organic” food in the United States. The use of synthetic substances generally is prohibited in organic foods, with the exception of specific materials that have been evaluated and added to a national list of allowed and prohibited substances.
- On September 16, 2013, USDA published a notice in the Federal Register, indicating a change in its listing process for synthetic substances. Prior to September 2013, synthetic materials were removed by default from the national list after a five-year “sunset” period, absent a specific vote to keep them on the list. Post-September 2013, the new process permits synthetic materials to remain by default on the national list, absent a specific vote to remove them. The Center for Food Safety and other groups have now sued USDA in a California federal court, asserting that USDA’s change in policy — which did not allow for public comment — violates the Administrative Procedure Act and the Organic Food Production Act.
- The lawsuit raises important questions about administrative procedure and whether USDA’s change in procedures constitutes a standard adjustment of Agency process or a significant substantive rule. Considering the size and sustained growth of the U.S. market for organic food, the disposition of this case will be of interest to a significant sector of the food industry and to consumers as well.