June 17, 2005:
Organic industry representatives and environmental
and consumer watchdog groups appeared to be in agreement
when they met June 9 at a pre-hearing conference in
Portland Maine to hammer out recommendations to District
Court Judge D. Brock Hornsby in the case of Harvey v.
Johanns (formerly Harvey v. Veneman).
Maine organic blueberry farmer Arthur Harvey, who brought
the original suit based on perceived inconsistencies
between the 1990 Organic Food Production Act (OFPA)
and the federal Organic Rule adopted in 2002, proposed
uniform phase-in periods of 24 months for all three
of his successful counts, which were:
- That non-organic ingredients not commercially available
in organic form but used in the production of items
labeled “organic”—that is, containing
at least 95 percent organic ingredients—must
be reviewed on a case-by-case basis and placed on
the National List of Allowed and Prohibited Substances.
- That synthetic substances shall not be allowed in
the processing of products labeled “organic.”
- That dairy herds converting to organic production
will not be allowed to be fed up to 20 percent conventional
feed during the first nine months of a one-year conversion.
This had been known as the 80/20 conversion clause.
Judge Hornsby agreed with the recommendation—which
had earlier been given the green light by attorneys
for the USDA, the Organic Trade Association and various
amici (friends of the court) supporting Harvey—and
signed the order outlining the above points.
Harvey brought his original suit forward just days
after the Organic Rule went into effect. He was later
joined by a coalition of supporters including Beyond
Pesticides, Rural Advancement Foundation International
and the Organic Consumers Association.
The suit was initially unsuccessful, but an appeals
court sided with Harvey on three of his original nine
counts and remanded the case back to the original court
for interpretation. While many in the organic industry
had expressed shock and even outrage at what they considered
a surprise verdict, Harvey and other organic purists
said the outcome should have been no surprise at all
because the Organic Rule clearly contradicted the OFPA.
“How did it happen that the organic heavies—inside
and outside USDA—pretended all along that the
law allowed synthetics in processing?” Harvey
asked in a recent letter to New Farm. Harvey pointed
out in the same letter that the 80/20 conversion clause
meant that these cows were most probably being fed GMO
corn during this grace period just three months before
they went into organic production. “This was not
the case when 80/20 was adopted 10 or 15 years ago,
Now the USDA has a year to change the statutes and
another year to enforce those changes, providing that
nobody challenges the court ruling by attempting to
change OFPA to conform to the Rule rather than vise
versa (a move which would require an act of Congress).
“The involved folks representing the public
interest, consumers, and the sustainable ag people are
seeking to implement the court’s decision,”
said Jay Feldman, executive director of Beyond Pesticides.
“We feel this is the best course of action to
maintain the integrity of organics in the marketplace.
“The order was expected,” Feldman said.
“Now our hope is that, over this timeframe, the
industry can adjust to the spirit and intent of the
statute in a manner that doesn’t cause any economic
harm or economic dislocation and that meets consumers’
For more on this story: Harvey
v. Veneman’s spectre of unintended consequences
roils organic waters