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Lawsuit seeks to reverse USDA’s decision to withdraw organic livestock rule

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A coalition of organic advocates and farmers is suing the U.S. Secretary of Agriculture Sonny Perdue over last week’s decision to withdraw the Organic Livestock and Poultry Practices (OLPP) rule.

In a suit filed on Wednesday (March 21) at the United States District Court for the Northern District of California, the coalition, which is led by the Center for Food Safety (CFS), alleged that the decision to withdraw the rule represents a “complete reversal of the last 28 years of organic standards and policy.”

According to the lawsuit, USDA’s March 13 decision to scrap the rule violates the Organic Foods Production Act (OFPA), goes against the Administrative Procedure Act (APA), and “threatens to undermine the very integrity of the organic label that consumers trust and producers rely upon.”

The plaintiffs in the lawsuit besides CFS are Center for Environmental Health (CEH), Cultivate Oregon, and International Center for Technology Assessment (ICTA).

The OLPP rule, which was finalized under the Obama administration in the beginning of 2017, was developed to strengthen the minimum standards for the care and well-being of animals on organic farms. The rule would have been the first federal regulation to outline what minimum spacing requirements and quality of outdoor space should be provided for organic poultry.

Under the Trump administration, however, USDA delayed the final rule's effective date three times, and then formally withdrew it.

The coalition is challenging that “outrageous” and “unlawful” decision in a lawsuit that names as defendants not just USDA and Perdue but also Bruce Summers, who is the agency’s acting administrator for Agriculture Marketing Service (AMS), and Ruihong Guo, the acting deputy administrator for the National Organic Program (NOP).

“The goal of the suit is pretty simple – to have the rule reinstated,” Amy van Saun, staff attorney at CFS, told IEG Policy on Thursday (March 22). “That rule is a product of a decade-long process, with [input] from the public, the industry and the National Organic Standards Board. So, it has been thoroughly vetted and finalized.”

The OLPP rule gained widespread support from the organic industry, but was opposed by mainstream meat and poultry producers.

The rule addressed four broad areas of organic livestock and poultry practices: living conditions, animal healthcare, transport, and slaughter. It would have refined and clarified a series of organic animal welfare recommendations incorporated into the Organic Foods Production Act of 1990, which established the federal organic regulations.

An especially controversial provision of the OLPP rule would have banned the use of “porches” in organic poultry production, and would have required producers to give their poultry access to the outdoors.

But AMS proposed in December 2017 to withdraw the rule – a move that drew in more than 72,000 comments, of which more than 63,000 were in opposition and about 50 were in support.

The agency said it lacks the statutory authority to enforce the rule’s animal welfare provisions. AMS also argued that changing the existing organic regulations could have a negative effect on voluntary participation in the National Organic Program (NOP), including real costs for producers and consumers.

The coalition’s lawsuit, however, attacks each of these arguments.

The groups argue that USDA’s decision to reverse the rule represents a 180-degree flip on the agency’s interpretation of its authority under OFPA to set standards for organic livestock production.

AMS said it had no authority to establish rules related to the welfare and care of organic animals, apart from setting standards for what drugs are allowed for use in organic animal production, van Saun said. 

This new interpretation “overturns a decades-long interpretation and the basis for several prior organic livestock rules,” the groups argue in their lawsuit. It also goes against “the plain language of OFPA, which unambiguously requires USDA to promulgate additional standards for the care of livestock based on NOSB recommendation,” the lawsuit states.

When Congress enacted the OFPA, it had three main goals – to establish national standards for the marketing of certain agricultural products as organically produced products; to assure consumers that organic products meet consistent standards; and to facilitate commerce of fresh and processed food that is organically produced, the groups said in their lawsuit.

“Because the organic livestock industry was still nascent in 1990, Congress explicitly provided that additional standards for livestock would be developed later, according to the process established by OFPA,” the complaint notes.

And a 1990 Senate Report also stated that, while organic livestock production was a small industry in the U.S. at the time, “[w]ith additional research and as more producers enter into organic livestock production, the [Senate Committee on Agriculture, Nutrition, and Forestry] expects that USDA, with the assistance of the National Organic Standards Board, will elaborate on livestock criteria,” the groups said in the complaint.

Pasture rule sets precedent

Furthermore, USDA has already exercised its authority under OFPA regarding the care of organic livestock, the lawsuit notes. For instance, in 2010 USDA adopted rules (known as the Access to Pasture rule) providing specifics on what feed and living conditions should be provided for ruminant animals raised organically.

“The 2010 Access to Pasture regulations were based on the same authority as the Organic Livestock Rule and fulfilled the same OFPA purpose to ensure consistency and meet consumer expectations,” the groups said.

USDA itself has recognized this in the past, the lawsuit stated and quoted the agency saying that: “[t]he current practices of organic poultry operations to provide outdoor access and minimum indoor and outdoor space per bird vary widely. This disparity causes consumer confusion about the meaning of the USDA organic label, threatens to erode consumer confidence in the organic label more broadly, and perpetuates unfair competition among producers. This rule would enable AMS and certifying agents to efficiently administer the NOP. In turn, the consistency and transparency in certification requirements will facilitate consumer purchasing decisions.”

The lawsuit also disputes USDA’s recent argument that putting in place the OLPP would impose a significant financial burden on organic producers. AMS studied the potential financial impact of the rule and found that “most of” of OLPP’s requirements “align with current practices of organic operations,” and that “many of the requirements in this proposed rule are already implemented and will not produce significant costs.”

USDA’s economic study, Economic Impact Analysis of Proposed National Organic Standards Board Regulations for Living Conditions for Organic Poultry, also found that small and medium organic egg and broiler producers would have “negligible” additional costs as a result of OLPP and suggested marginal costs to large broiler producers, the groups noted.

And further, the coalition argues that USDA cannot rely on economic considerations in determining whether to enact organic standards, because the organic program is a voluntary program.

“People pay a premium price for these products, so they have to live up to the expectations of those consumers,” van Saun said. “So, they cannot take an economic consideration and use that as an excuse to not make a rule.”

NOSB never consulted

The lawsuit also challenges USDA’s process, stating that when USDA decided to withdraw the rule last week, it never consulted with the NOSB, which is the advisory body that was tasked by Congress to assist the agency in determining what the standards would be for livestock.

“NOSB has to be consulted about all these things,” van Saun said. “And USDA when it withdrew this rule never consulted with NOSB. That’s a major decision that they made, so it breaks with all their past practice. And they also didn’t explain to the public why they were breaking with the recommendations that NOSB did make that became this rule.”

NOSB in April 2017 told USDA the rule should not be delayed and should be implemented, she noted.

The groups argue the OLPP rule is sorely needed, because it would even out the playing field for organic producers and because it is what consumers want.

A 2017 survey by Consumers Union found that nine out of 10 respondents who regularly buy organic foods believe that it is very or extremely important that organic animals come from farms with high standards for welfare practices.

"Organic consumers and producers believe that organic means providing animals with sufficient space, meaningful outdoor access, proper lighting, appropriate diets, and clean conditions," said Cameron Harsh, CFS senior manager for organic and animal policy. "If not reversed, the new Trump decision will shatter confidence in the standard's integrity and trust that all products carrying the organic seal were produced with care for animals and the environment. It will allow honest and well-intended organic farmers that have always raised their livestock under a high standard of care to be undercut by fake organic production that is little more than animal factories."

USDA did not immediately respond to a request for comment on Friday (March 23).

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