WASHINGTON, Sept. 9, 2016 - A federal judge has cleared the way for a lawsuit challenging the way substances are removed from the list of those allowed in organic agriculture.

The Center for Food Safety and 14 other groups sued USDA in April of last year alleging that the department unilaterally altered the procedure used by the National Organic Standards Board, which decides which substances can be used to grow organic products.

In 2013, USDA issued a Federal Register notice that changed the Organic Foods Production Act’s “sunset provision,” which requires the NOSB to review substances on the National List of Allowed and Prohibited Substances every five years.

Before the change, votes of two-thirds of the NOSB were required to keep a substance on the list. Under the new procedure, U.S. District Judge Haywood S. Gilliam Jr., noted, “a NOSB subcommittee reviews each substance set for sunset review and proposes to the full NOSB a list of substances to be removed. … It is only those substances that an NOSB subcommittee member proposes for removal that are voted upon by the full NOSB.

“Significantly, because of this change to the review procedure, plaintiffs allege that a two-thirds vote is now required to remove a substance from the National List (unlike the prior procedure, under which a two-thirds vote was required to renew a substance),” Gilliam said.

The judge, who sits in the Northern District of California in San Francisco, dismissed the plaintiffs’ original lawsuit for lack of standing: They had not demonstrated how the procedural change would actually harm them, he said.

The groups filed an amended complaint in October that cited the example of

aqueous potassium silicate (APS), “a synthetic material used in organic agriculture as an insecticide and for plant disease control.” APS is made by combining natural mined sand and potassium carbonate in the presence of high heat to form water soluble glass beads.

NOSB voted 9-6 in 2014 to keep APS on the national list. Under the old rules, the lack of a two-thirds majority would have meant APS was out. However, it remains in use in organic production, “weakening organic integrity and injuring plaintiff members’ personal health and consumer interests,” according to their amended complaint.

“At this stage in the proceedings, the allegations are sufficient to establish injury-in-fact,” Gilliam said, setting a status conference in the case for later this month.


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