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, he wrote.
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