On April 7, 2015, several organic stakeholders filed suit in federal court alleging the USDA violated the Administrative Procedures Act when it altered how non-organic substances remain approved for use in organic programs. The change effects how synthetic and non-organic substances are removed from the National List of Allowed and Prohibited Substances – which identifies approved synthetic and natural substances which can be used in organic agriculture because organic counterparts are not available. Originally, substances on the National List would “sunset” or be taken off the list after 5 years unless two-thirds of the National Organic Standards Board (“NOSB”) voted to keep the substances on the approved list. The NOSB is made up of a 15 member board of producers, consumers, environmental advisers, retailers and certifiers who advise the Secretary of Agriculture and the National Organic Program on matters related to organic agriculture and food policy.
The lawsuit challenges two fundamental aspects of the USDA’s revision. Under the new policy, subcommittees of the NOSB review whether a material should be removed from the National List. The full board will now only review a substance if the subcommittee recommends removing the item from the National List. A second change alters the number of votes required to remove materials from the list. Previously, a two-thirds vote of the NOSB was necessary to keep a material on the list. The USDA’s changes require a two-thirds vote of board members to remove an item from the list - a change which the authors of the Organic Foods Production Act of 1990 say in a letter to Ag Secretary Tom Vilsack turns the sunset policy "on its head."
The suit alleges that the USDA’s decision constitutes a rule change which should have been subject to public hearings and comment. The plaintiffs ask the court to require the USDA to reconsider its decision and institute a public hearing and comment process. A joint statement from the plaintiffs in the suit is available here.