Summary of a Recent
Judicial
Development in
National Organic Program
Magistrate Issues Decision on
Inconsistency of Organic Program Final
Rule and Organic Foods Production Act
Jennifer FiserResearch Associate
Summary
In Harvey v. Veneman, No. Civ. 02-216-P-H, 2003 WL 22327171 (D. Me. Oct. 10, 2003), Magistrate Kravchuk issued a recommended decision suggesting that the court grant USDA Secretary Veneman's motion for summary judgment with respect to counts one through eight of Harvey's lawsuit and remand count nine, which challenged the rule governing the management of wild crops, for further rulemaking.
Background
Plaintiff Arthur Harvey was a certified organic farmer, a handler, an organic inspector, and a consumer of organic products. Id. at *2. He filed a lawsuit containing nine counts that challenged the consistency of the National Organic Program (NOP) with the Organic Foods Production Act (OFPA). Id. at *1.
Analysis and Holdings
Count 1
Harvey claimed that the language of 7 C.F.R. section 205.606 should be deleted because the allowance of nonorganically produced agricultural products when organic forms are not commercially available would defeat the sunset provision of the National List. Id. at *5. Harvey believed that the language of the NOP rule would allow each manufacturer to make its own determination of whether a product was commercially unavailable, and bypassed the review of technical advisory panels in conflict with the OFPA. Id. The Secretary argued that the NOP was consistent with the OFPA, and that the rule provided that, rather than independent determinations of commercial unavailability, one national list of allowed nonorganic agricultural products would be maintained. Id. at *6. The Magistrate rejected Harvey's interpretation, and suggested that the court grant summary judgment in favor of the Secretary. Id.
Count II
Harvey argued that the use of the label "made with organic" for products that are seventy to ninety-five percent organic was in conflict with the OFPA. Id. at *8. He claimed that this label would confuse consumers and that a label of "made partly with organic" should be used instead. Id. The Magistrate found that because Congress had expressly granted the authority to the Secretary to create rules regarding the use of "organic" in labeling of products containing less than ninety-five percent organic, the regulation was not in conflict with the OFPA. Id. at *10.
Count III
Harvey contended that the allowance of nonagricultural nonorganic products violated the spirit of the OFPA and contradicted 7 U.S.C. section 6510(a)(1). Id. at *7. The Magistrate noted that section 6517 of the OFPA allowed for the use of nonagricultural nonorganic ingredients to be used if those ingredients were placed on the National List, and stated that she did believe the NOP regulations violated the spirit of the OPFA. Id. at *8.
Count IV
Harvey requested a finding that the Secretary's rulemaking with respect to public access to documents was arbitrary. Id. at *10. Harvey argued that the regulations were not broad enough regarding which documents would be available to the public. Id. The Secretary argued that the rule was in accord with the OFPA, and that it was a reasonable balance between the public's access to documents and the confidentiality of the businesses involved. See id. at *11. The Magistrate found that the Secretary's interpretation was not arbitrary or capricious. Id. at *12.
Count V
Harvey argued that the Secretary's exclusion of wholesalers and many retailers from regulation was arbitrary. Id. The Secretary asserted that the exclusion was reasonable because the OFPA is primarily directed at producers and handlers. Id. at *13. The Magistrate agreed with the Secretary that "it is fair to read the thrust of OFPA as being towards regulating producers and handlers" and noted that the Senate Report emphasizes that the definition of producer and handler excludes the final retailer who is not involved in processing the food. Id. The fact that the OFPA covers food products through "final processing" according to the Senate Report also supported the Secretary's position. See id. at *14.
Count VI
Harvey challenged the OFPA's provision which prohibited certifiers and inspectors from giving advice, stating that it harmed farmers, consumers, and inspectors and was a violation of his right to free speech. Id. at *15-16. He also alleged that the regulation was adopted without sufficient notice and comment. Id. at *15. The Secretary countered that the prohibition was a reasonable way to address potential conflicts of interest and noted that Harvey was free to provide alternative forms of education, such as training programs and educational workshops. Id. The Secretary also explained that the rule was an attempt to be consistent with ISO 65 in order to make the program consistent with international standards. Id. at *16. The Magistrate agreed that the rule was reasonable and suggested the court rule in favor of the Secretary. Id.
Count VII
Harvey claimed that the NOP's allowance of the use of at least eighty percent organic feed during the conversion of dairy herds to organic production was a violation of the OFPA. Id. at *17. The Secretary responded that while the NOP's rule is a change from the guideline set out in the OFPA, the change is permissible because of the potential economic barrier to producers that would result from a requirement to use completely organic feed. Id. In addition, the Secretary pointed out that the OFPA is ambiguous with regard to the feed standards and that the rule was made after a notice and comment period. Id. at *18. The Magistrate recommended that the Court rule in favor of the Secretary, noting that prior case law has demonstrated that "notice requirements do not require that the final rule be an exact replication of the proposed rule." Id. at *19 (quoting Assoc. of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1058 (D.C. Cir. 2000). The Magsitrate also found that Harvey did not have standing to pursue this count. Id. at *20. She stated that his standing was based "mostly on his consumption of organic food in general" and that there was no assertion that he was a milk consumer or inspector of dairy operations. Id.
Count VIII
Harvey argued that the NOP's rule that private certifiers not require compliance with additional criteria outside of the requirements of the NOP should be struck down. Id. at *21. Harvey stated that this limitation would prevent competition between certifiers and would slow the development of additional standards based on new research and technology. Id. He also asserted that it was a violation of his equal protection rights because, while some states have passed more stringent requirements, his state had not done so. Id. The Secretary argued that the rule helped to accomplish one of the main goals of the OFPA-the need for uniformity among certifiers. Id. The Secretary also noted that private certifiers are allowed to develop other standards as long as they are not referred to as "organic standards" and producers are not required to comply with the additional standards for NOP certification. Id. The Magistrate found that the Secretary's rule was within the authority granted by the statute. The Magistrate also recommended that the court rule against Harvey on his equal protection claim, noting that Harvey and other residents of Maine could petition their state government to enact stricter standards. Id.
Count IX
Harvey alleged that the NOP did not implement some aspects of the OFPA regarding the management of wild crops. Id. at *23. The Magistrate stated that the Secretary's interpretation appeared to be that wild crops should be subject to the same standard as non-wild crops, but that the OFPA seemed to go beyond this standard, requiring that prohibited substances not be applied to either the crop or the area in which it is grown. Id. at *24. The Magistrate recommended that the court remand this issue to the Secretary for further rulemaking in accord with 7 U.S.C. section 6513(f)(4). Id.
The case was decided on October 10, 2003; this summary was posted September 27, 2007.