Conflict over ‘sunset’ policy flares at organic board meeting

By Agri-Pulse staff

© Copyright Agri-Pulse Communications, Inc.



WASHINGTON, April 30, 2014 -- A conflict brewing since last September spilled over Tuesday at the National Organic Standards Board (NOSB) semiannual meeting in San Antonio, Texas, where USDA officials heard strident complaints over a change by USDA in the way synthetic materials are approved for use in organic foods.

A 1990 law establishing standards for the organic food industry set up the board, a 15-member volunteer citizen advisory panel that makes recommendations to the USDA about which synthetic substances should be allowed or prohibited in organic agriculture.

Sponsors of that legislation say it established a very thorough review process under which certain synthetic chemicals could be placed on a “national list” and used in organic products, but only under a temporary exemption approved by at least a two-thirds majority of the NOSB. Under the law, those allowances for synthetic materials would automatically expire after 5 years.

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But organic activists claim USDA flipped the “sunset” provision, changing the rules to automatically continue approval of the synthetic material after five years unless a two-thirds majority of the board votes to repeal the approval.

The change was detailed in a notice published in the Federal Register last September and went into effect in November. In a memo issued the same day the notice was published in the Federal Register, Miles McEvoy, deputy administrator of USDA's Agricultural Marketing Service (AMS) and the National Organic Program (NOP) manager, said the change made the review and renewal process more transparent, and would give organic producers more time to find an alternative material or more time to reformulate and re-label their products if a substance is removed from the national list.

McEvoy said Tuesday the change streamlined the decision-making process, noting that NOP previously was required to go through three extensive “rulemaking” procedures for each substance facing expiration - a process now narrowed to a single rulemaking. He said also that previously, the process was rendered unfair because only a 40 percent minority of the NOSB was required to remove a substance from the national list. He said the new policy protects organic farmers and consumers, provides greater authority to the citizen advisory board and increases public input.

But board member Jay Feldman, executive director and co-founder of the national environmental and public health group Beyond Pesticides, said the minority vote to remove a material was a deliberate calculation made by the authors of the 1990 Organic Food Production Act as a way of forcing the board to reach a consensus. Feldman said he fears that with a new two-thirds majority, the wishes of the minority and the stakeholder groups they represent may feel their concerns are being overridden by larger interests, leading to stakeholders leaving the NOSB structure.

“If we lose the trust of a stakeholder group,” Feldman warned, others could follow, the system could collapse and “we're left with nothing.”

Mark Kastel, co-director of the Cornucopia Institute, an organics industry watchdog group, and one of many speakers complaining about the changes in the sunset provisions, said establishing a burden of having to prove a material should be removed from the list represents a “power grab” by USDA. The move, he added, is “significantly eroding a unique public and private partnership that Congress created in the governance of organic food and agriculture.”

Kastel's group and more than 35 other organizations, including the Center for Food Safety, Consumers Union and Food & Water Watch, submitted comments ahead of this week's NOSB meeting in Austin in an effort to get the synthetic material sunset policy returned to its original language.

Kastel said the change was made after the NOSB refused “to go along with agribusiness in approving gimmicky synthetics and nutraceuticals in organic food” and that “corporate interests . . . have now had their minions at the USDA change the rules in the middle of the game.”

He and others had hoped going into this week's NOSB meeting that USDA would reverse course and reinstate the previous sunset policy. But McEvoy left little doubt that the department intends to stay with the policy as revised, calling it a “positive” change.

Kastel was not deterred, telling Agri-Pulse, “If USDA does not make the change in policy, then this will be settled in a court of law.”

All of the groups opposing the change were particularly displeased by what the Center for Food Safety called “an absence of any public input” before the policy was revised, “undermining the participatory bedrock of organic policy.”

The two original congressional sponsors of the 1990 Organic Production Act, which established the NOSB, registered their concerns in a letter last week to Agriculture Secretary Tom Vilsack. Sen. Patrick Leahy, R-Vt., and Rep. Peter DeFazio, D-Ore., said the change implemented by USDA last September “turns the sunset policy of [the law] on its head.”

The two lawmakers, who indicated the change caught them by surprise, told Vilsack in the letter that to create a presumption that all synthetic materials on the approved list will be automatically renewed at the five-year sunset mark, and to establish a high hurdle - a two-thirds vote - to remove the material from the list, “is a complete reversal of the statutory and long-standing policy on the burden of proof that has required a two-thirds majority vote in order to renew the material.”

Leahy and DeFazio also expressed concern that the policy change relegates the sunset review to an NOSB subcommittee and imposes “major roadblocks to the review of the material by the full NOSB as part of the sunset process.”

They called on Vilsack to reverse the policy change, stating that “if, after consulting with Congress and the full spectrum of the affected organic community, you still believe this change is necessary, we strongly recommend that you use the full notice and comment rulemaking procedures to do so.”

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