My Motion to Enforce Judgement
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
Dated at Portland, Maine this 30th day of June, 2006.
ARTHUR HARVEY,
Plaintiff,
v. Civil No. 02-216-P-H
MIKE JOHANNS,
SECRETARY OF AGRICULTURE,
Defendant.
PLAINTIFF’S MOTION TO ENFORCE THE JUDGMENT
INTRODUCTION
Plaintiff, Arthur Harvey, hereby moves the Court to enforce the
Consent Final Judgment and Order (“Judgment”) entered in this
matter on June 9, 2005. (Docket No. 88). Specifically, with
regard to Count 3 of the Complaint, the Judgment declared that
the Department of Agriculture (“USDA”) regulations found at 7
C.F.R. §§ 205.600(b) and 605(b) were contrary to law and
exceeded the Secretary’s rulemaking authority “to the extent
that they permit the addition of synthetic ingredients and
processing aids” in organically-labeled products. 7 C.F.R.
§ 205.600(b) was a list of six criteria for the evaluation of
synthetic processing aids or adjuvants for inclusion on the
National List of otherwise prohibited substances which may be
used in organically-labeled foods. 7 C.F.R. § 205.605(b) was
the National List of synthetics permitted in organic processed
products. It listed 38 synthetic substances, including
ingredients, processing aids and other types of substances.1
The U.S. Court of Appeals for the First Circuit had held that both
of these regulations contravened the Organic Foods Production
Act’s (“OFPA”) prohibitions on the use of synthetic substances
in the post-harvest handling of organic foods.
This Court ordered the Secretary to publish final rules
implementing the Judgment within 360 days. The Secretary
purported to do so on June 7, 2006. 71 Fed. Reg. 32803.
However, the Final Rule did not remove or revise the regulations
at 205.600(b) and 605(b) which this Court had invalidated.
USDA claimed that a November 10, 2005 amendment to OFPA
had
restore[d] the NOP [National Organic Program] regulation for
organic processed products containing at least 95 percent
organic ingredients on the National List [sic] and their ability to
carry the USDA seal. Therefore USDA is not revising the NOP
regulations to prohibit the use of synthetic ingredients in
processed products labeled as organic nor restrict [sic] these
products’ eligibility to carry the USDA seal.
71 Fed. Reg. at 32804 (emphasis in original). While USDA here
refers to synthetic ingredients, no changes were made to the
regulation to prohibit the use of synthetic processing aids as
required by this Court’s Judgment. As confirmed by a Q &A
document accompanying the Final Rule, USDA is claiming that the
entire list of synthetic substances found at 7 C.F.R.
§ 205.605(b) at the time of the Judgment has been restored by
the OFPA amendment.2
However, the OFPA amendment addresses only synthetic
ingredients, and not synthetic processing aids. Thus, USDA is in
violation of this Court’s Judgment due to its failure to revise its
regulations to prohibit the use of synthetic processing aids in the
handling of organically-labeled products.3
USDA is also in violation of the Judgment because it has
continued to permit the use in organic foods of numerous
additional synthetic processing aids which are not listed in the
regulation. A 2002 USDA Policy Statement currently posted on
the NOP web site permits the use in organic foods of “food
contact substances,” as classified by the Food and Drug
Administration (“FDA”), without review for inclusion on the
National List.4 FDA currently classifies over 300 substances as
permissible “food contact substances” for conventional (non-
organic) foods, many of which are synthetic processing aids.5
USDA’s Policy allows use of these synthetic substances in the
processing of organic foods without the statutorily-required
review and recommendation by the National Organic Standards
Board (NOSB) and placement on the National List. 7 U.S.C. §§
6504(1), 6510(a)(1), 6517.
Plaintiff seeks an order enforcing the Judgment, requiring USDA
to amend its regulations to prohibit the use of synthetic
processing aids in organically-labeled products, and to revoke or
revise its 2002 Policy Statement so that synthetic ingredients
may not be used in organic foods without being on the National
List and so that synthetic processing aids and other synthetic
substances prohibited by OFPA not be permitted in the
processing of organic foods.
BACKGROUND
On January 8, 2004, this Court granted summary judgment in
the Defendant’s favor on all nine counts of Plaintiff’s Complaint.
Plaintiff appealed seven of those counts (all except Counts 4 and
9). On January 26, 2005, the First Circuit Court of Appeals ruled
in Plaintiff’s favor on Counts 1, 3 and 7, and affirmed this Court’
s grant of summary judgment to USDA on Counts 2, 5, 6 and 8.
On June 9, 2005, this Court entered a Consent Final Judgment
and Order implementing the Court of Appeals mandate. The
terms of the Judgment were agreed to by
Plaintiff, USDA, and Amicus, the Organic Trade Association. Only
Count 3 is at issue here.
Count 3 challenged the regulations at 7 C.F.R. §§ 205.600(b)
and 605(b) which permitted the addition of synthetic substances
in the handling of organic foods.5 Plaintiff contended that OFPA
specifically forbade the use of synthetics in organic handling.
The Act broadly prohibits the “use of synthetic chemicals, except
as otherwise provided in this chapter” in both the production
and handling of organic foods. 7 U.S.C. § 6504(1). The Act did
not “otherwise provide” for the use of synthetic substances in
handling. In fact, § 6510(a)(1) specifically forbade organic
handlers from “add[ing] any synthetic ingredient during the
processing or any postharvest handling of the product.” The
statutory provision which authorizes the National List, 7 U.S.C. §
6517, provided that substances listed for use in handling (as
opposed to production) be “non-synthetic” but “not organically
produced.” 7 U.S.C. § 6517(c)(B)(iii).
The Court of Appeals agreed with Plaintiff’s analysis, stating:
“Harvey is correct; the challenged regulations lie outside the
scope of the authority granted the Secretary by OFPA.” The
Court agreed that OFPA contains a “ban on the addition of
synthetic substances in handling [applicable to] products labeled
‘organic’ or ‘100% organic,’” and invalidated both 205.600(b)
and .605(b). 396 F.3d at 39 and n. 2.
In November, 2005, subsequent to the entry of this Court’s
Judgment and prior to the issuance of proposed implementing
rules by USDA, an amendment to OFPA was added to the 2006
Agricultural Appropriations bill. It was not in either the House
or the Senate versions of the bill, but was added in conference
committee without any discussion or debate. Thus, there is no
legislative history which might illuminate the meaning of the
amendment or Congress’ intent in enacting it. Therefore, it must
be interpreted based solely upon its plain language.
The amendment made two changes to OFPA which are relevant
here. First, it amended 7 U.S.C. § 6510(a), which prohibited the
addition of any synthetic ingredient in the handling of organic
foods, by adding the words “not appearing on the National List”
after the word “ingredient.” The provision now reads:
(a) In general
For a handling operation to be certified under this chapter, each
person on such handling operation shall not, with respect to any
agricultural product covered by this chapter –
(1) add any synthetic ingredient not appearing on the National
List during the processing or any postharvest handling of the
product.
Second, it amended the National List provision to add “in organic
production and handling operations” to the title at § 6517(c)
(1), so that it reads:
(c) Guidelines for prohibitions or exemptions
(1) Exemption for prohibited substances in organic
production and handling operations
Section § 6517(c)(1) goes on to state the criteria for “provid
[ing] for the use of substances in an organic farming or handling
operation that are otherwise prohibited under this chapter. . .”.
The amendment eliminated the criterion at § 6517(c)(1)(B)(iii)
which restricted substances which could be placed on the
National List for use in handling to non-synthetics.
On April 27, 2006, USDA published proposed regulations
implementing the Judgment in this case. 71 Fed. Reg. 24820.
USDA proposed no changes to 7 C.F.R. §§ 205.600(b) or 605
(b), claiming that the amendment restored the regulation and
thus no revisions were necessary. Id. at 24821. Mr. Harvey and
others submitted comments asserting that the amendment to
OFPA at most authorized the allowance of synthetic ingredients
on the National List, and that the Court’s judgment still needed
to be implemented concerning synthetic processing aids.
Moreover, the Food Contact Substances Policy Statement, which
permits the use of synthetic processing aids without being on
the National List, contravenes this Court’s order, the Court of
Appeals mandate, and the amendment itself, which at most
grants authority for the use of synthetic “ingredients”
“appearing on the National List.”7 The Final Rule contained no
change with respect to synthetics, and no discussion or even
acknowledgment of the comments of Harvey and others on this
subject. 71 Fed. Reg. 32803 (June 7, 2006).
ARGUMENT
USDA has failed to implement the Judgment with regard to
Count 3. Its Final Rule purportedly implementing the Judgment
fails to revise the invalidated regulations at 7 C.F.R §§ 205.600
(b) and 605(b). USDA justifies this failure solely on the basis of
a statutory amendment which at most restores the list of
synthetic ingredients contained in the regulation at the time of
the Judgment. USDA must eliminate 200.600(b), which was
struck down by the Court of Appeals because it contained
criteria for the inclusion on the National List of synthetic
processing aids and adjuvants, which that Court found were not
permitted at all under OFPA. The OFPA amendment did nothing
to change the Court of Appeal’s ruling or this Court’s Judgment
concerning .600(b). With regard to 200.605(b), the regulation
must eliminate processing aids from the list and direct that the
listed substances may be used only as ingredients and not as
processing aids.8
USDA merely declares, without further support, that the
amendment restored the previous regulations. USDA incorrectly
characterizes the amendment as “permitting the addition of
synthetic substances appearing on the National List for use in
products labeled ‘organic.’” 71 Fed. Reg. 32804 (emphasis
supplied).9 In fact, Congress did not use the more inclusive
term “substances” used in § 6517 (the National List provision)
or the general term “chemicals” used in OFPA § 6504. It used
the term “ingredients,” which is specifically defined in the NOP
regulations and differentiated from “processing aids.” The
regulatory definitions demonstrate not only that ingredients and
processing aids are distinct and mutually exclusive categories,
but also that they are both sub-categories of “substances,” the
all-inclusive term of art used in the statute and regulations.10
Given the clear statutory and regulatory distinctions among the
terms “ingredients,” “processing aids,” “substances” and
“chemicals”-- as well as the explicit application of the Judgment
here to both ingredients and processing aids -- it must be
assumed that Congress’ choice of the term “ingredients” was
intentional and means what it says.
Most significantly, Congress did not amend 7 U.S.C. § 6504(1),
which requires generally that organically-labeled products be
“produced and handled without the use of synthetic chemicals,
except as otherwise provided in this chapter.” Thus, the general
prohibition of
§ 6504(1) remains, and the language of the amendment can be
read as at most a limited exception, pertaining to synthetic
ingredients which appear on the National List.11 There is no
other authority anywhere in the statute permitting any other
synthetics in handling.12
In sum, while the OFPA amendment arguably may have vitiated
the Judgment with regard to synthetic ingredients, it did not do
so with respect to processing aids, and that part of the
Judgment must be implemented.
The Court of Appeals decision and this Court’s Judgment
determined that the allowance of synthetic processing aids in
organic handling is contrary to OFPA and in excess of the
Secretary’s authority. This determination applies equally, if not
more forcefully, to synthetic
processing aids which are permitted by USDA’s Policy Statement
without being subject to the National List procedures. If it is in
excess of the Secretary’s authority to permit synthetic
processing aids by rulemaking, it is certainly beyond his
authority to do so by a Policy Statement on the agency website.
The Policy Statement violates the Court of Appeals mandate and
this Court’s Judgment. It also violates the 2005 OFPA
amendment itself, whose only possible authorization for the use
of synthetics in handling is both limited to ingredients and
explicitly forbids synthetic ingredients “not appearing on the
National List.”13 USDA has an obligation to revise its 2002
Policy Statement so that synthetic ingredients may not be used
in organic foods without being on the National List, and to
eliminate the authorization for the use of synthetic processing
aids and other substances which violate OFPA.
CONCLUSION
This Court should order USDA to comply with the Consent
Judgment by revising its regulations to prohibit the use of
synthetic processing aids in organically-labeled products. Its
Food Contact Substances Policy must be either revoked or
revised 1) to require that all synthetic
ingredients be on the National List and 2) to remove the
authorization for the use of synthetic processing aids and other
substances which contravene OFPA’s requirements for organic
handling.
Dated at Portland, Maine this 30th day of June, 2006.
Respectfully submitted,
______________________________________
___________________________
Martica S. Douglas – Bar No. 558 Paula
Dinerstein
DOUGLAS, DENHAM, BUCCINA & ERNST D.C. Bar. No.
333971
103 Exchange Street LOBEL, NOVINS & LAMONT
P.O. Box 7108 1275 K St. N.W. Suite 770
Portland, Maine 04112-7108 Washington, D.C. 20005
(207) 774-1486 (301) 589-0210
Attorneys for Plaintiff, Arthur Harvey
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
ARTHUR HARVEY,
Plaintiff,
v. Civil No. 02-216-P-H
MIKE JOHANNS,
SECRETARY OF AGRICULTURE,
Defendant.
ORDER
Upon consideration of Plaintiff’s Motion to Enforce the Judgment
and Defendant’s Opposition thereto, it is this _____ day of
____________, 2006, hereby
ORDERED, that Plaintiff’s Motion be GRANTED. It is
FURTHER ORDERED, that the USDA National Organic Program
regulation at 7 C.F.R. § 205.600(b) is hereby invalidated; and it
is
FURTHER ORDERED, that the USDA National Organic Program
regulation at 7 C.F.R. § 205.605(b) is hereby invalidated. USDA
must amend this regulation so that no synthetic substances
listed for use in the handling of organically-labeled foods may be
used as processing aids; and it is
FURTHER ORDERED, that the USDA Policy Statement entitled
“Synthetic Substances Subject to Review and Recommendation
by the National Organic Standards Board When Such Substances
are Used as Ingredients in Processed Food Products,” dated
Dec. 12, 2002, must be revoked or revised 1) to remove any
authorization for the use in organic handling of synthetic
ingredients which are not on the National List and 2) to remove
any authorization for the use of synthetic processing aids and
other substances which contravene the requirements of the
Organic Foods Production Act of 1990 for organic handling; and
it is
FURTHER ORDERED, that USDA conduct a notice and comment
rulemaking proceeding to implement this Order. A proposed rule
must be issued within 60 days of the date of this Order, and a
final rule must be issued within 120 days of the date of this
Order; and it is
FURTHER ORDERED, that all of the provisions of the Consent
Final Judgment and Order of June 9, 2005 remain in force.
__________________________
D. Brock Hornby
United States District Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
ARTHUR HARVEY,
Plaintiff,
Civil Action No. 02-216-P-H
MIKE JOHANNS,
SECRETARY OF AGRICULTURE,
Defendant.
CERTIFICATE OF SERVICE
I hereby certify that I caused the foregoing PLAINTIFF’S
MOTION TO ENFORCE THE JUDGMENT with the attached
PROPOSED ORDER to be served by first class mail this 30th day
of June, 2006 on:
Paula D Silsby
United States Attorney
Halsey B. Frank
Assistant U.S. Attorney
P.O. Box 9718
Portland, ME 04104-5018
Richard L. O’Meara
Murray, Plumb & Murray
P.O. Box 9785
Portland, ME 04101-5085
William J. Friedman
Covington & Burling
1201 Pennsylvania Ave., N.W.
Washington, D.C. 20004
______________________________
Martica S. Douglas – Bar No. 558
Attorney for Plaintiff, Arthur Harvey
Douglas, Denham, Buccina & Ernst
Attorneys At Law
103 Exchange Street
P. O. Box 7108
Portland, Maine 04112-7108
(207) 774-1486
