Summary of a Recent
Judicial Development in
National Organic Program

Amendments Supersede Consent Decree
Prohibiting Synthetic Ingredients and
Processing Aids

Jennifer Fiser
Research Associate

Summary

In Harvey v. Johanns, 462 F. Supp. 2d 69 (D. Me. 2006), the United States District Court for the District of Maine held that the Secretary of Agriculture was not required to comply with an earlier consent decree in light of the amendment of the Organic Foods Production Act by Congress in 2005. The court also found that the Plaintiff's challenge of a Policy Statement regarding the use of food contact substances in organic production was beyond the scope of his original lawsuit and consent decree. Id. at 71.

Background

Plaintiff Arthur Harvey filed a lawsuit challenging the consistency of the National Organic Program (NOP) and the Organic Foods Production Act (OFPA), 7 U.S.C. §§ 6501-6522. Harvey v. Veneman, No. Civ. 02-216-P-H, 2003 WL 22327171 (D. Me. Oct. 10, 2003). The District Court granted summary in favor of Secretary Veneman on all counts. Harvey v. Veneman, 297 F.Supp. 2d 334 (D. Me. 2004). The First Circuit Court of Appeals reversed with respect to the third and seventh counts. Harvey v. Veneman, 396 F.3d 28 (1st Cir. 2005). Congress subsequently amended the OFPA in November 2005. Pub. L. No. 109-97, 119 Stat. 2120 (2005). Harvey then moved to enforce the consent decree and asked the court to order the USDA to revoke a 2002 Policy Statement regarding food contact substances. 462 F.Supp. 2d 69, at 71.

Analysis and Holdings

The court found that the 2005 amendments to the OFPA relieved the Secretary from complying with the consent decree. Id. at 72. The court stated "Congress's objective in making these amendments is clear: synthetic substances can be permitted in handling." Id. at 72. Therefore, the First Circuit's basis for finding the regulations to be invalid was eliminated by the amendments. See id. at 74.

The 2002 Policy Statement regarding food contact substances was held to be beyond the scope of the original lawsuit. Id. at 75. The court stated that the Policy Statement was not considered by the First Circuit or mentioned in the final judgment of the earlier decision, so it was not subject to a motion to enforce that final judgment. Id.

The case was decided on November 2, 2006; this summary was posted September 27, 2007.