Judge issues order in Harvey v. Veneman
Once diverging parties seem to be in agreement on the need to implement changes in Organic Rule

By Dan Sullivan

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’ expectations.”

For more on this story: Harvey v. Veneman’s spectre of unintended consequences roils organic waters