“We are standing up on behalf of the entire organic sector to protect organic integrity, advance animal welfare, and demand the government keep up with the industry and the consumer in setting organic standards," Laura Batcha, executive director and CEO of the OTA said in a statement.
The suit alleges that final organic livestock practices were developed by the organic industry and established in accordance with Congressional processes, and that USDA unlawfully delayed the effective date of the standards and violated the Organic Foods Production act. Also, the OTA believes USDA abused its discretion by ignoring public record that supported the organic standards. The association further contends that a regulatory freeze on federal agencies by the Trump administration issued on Jan. 20, 2017, should not apply to organic standards because they are voluntary and apply only to those that opt in.
"The organic industry takes very seriously its contract with the consumer and will not stand aside while the government holds back the meaningful and transparent choice of organic foods that deliver what the consumer wants," Batcha said. "The government's failure to move ahead with this fully vetted regulation calls into question the entire process by which organic regulations are set – a process that Congress created, the industry has worked within, and consumers trust.
"The viability of the organic market rests on consumer trust in the USDA Organic seal, and trust that the organic seal represents a meaningful differentiation from other agricultural practices," Batcha added, and noted that the board of the OTA voted unanimously to initiate the lawsuit.
The Organic Livestock and Poultry Production rule, commonly referred to as the Organic Animal Welfare Rule, began 14 years ago and has been through multiple presidential administrations, both Republican and Democrat, reflecting input from organic stakeholders. It addresses living conditions, animal healthcare, transport and slaughter and serves to represent a series of organic animal welfare recommendations incorporated into the Organic Foods Production Act of 1990.
• Establishes minimum indoor and outdoor space requirements for poultry,
• Clarifies how producers and handlers must treat livestock and chickens to ensure their health and well-being throughout life, including transport and slaughter,
• Specifies which physical alterations are allowed and prohibited in organic livestock and poultry production,
• Provides more than ample timelines for producers to come into compliance including:
-five years to establish outdoor access requirements for egg operations
-three years for broiler operations to establish indoor space requirements
-one year for all other adjustments.
• Levels the playing field by clarifying the existing organic standards.
The final rule was first published in the Federal Register on Jan. 19, 2017. It was delayed until May 10, 2017, after the White House Memorandum to federal agencies requesting a regulatory freeze on rules recently published or pending. Then on May 10, 2017, the USDA delayed the effective date for the final rule to Nov. 14, 2017, and opened a comment period for responses to four possible options:
1) Let the rule become effective, which would mean the rule would become effective on Nov. 14, 2017;
(2) Suspend the rule indefinitely, during which time the Agriculture Department would consider whether to implement, modify or withdraw the Final Rule,
(3) Delay the effective date of the rule further, beyond Nov. 14,
(4) Withdraw the rule.
More than 47,000 comments were received during the 30-day comment period, with 99 percent of those comments in support of the rule becoming effective as written without further delays, on Nov. 14, 2017.
"Producers are organic because they choose to be. It's a voluntary system, and the organic sector welcomes clear and fair standards under which to operate," Batcha said. "Organic regulations apply only to certified organic producers, and those organic producers are overwhelmingly in favor of this new regulation. Most of the criticism of the new organic animal welfare rule has come from outside the sector, and by special interest groups not impacted by the regulation, but which would like to override the will of our members."
"The organic industry has been fighting for this rule for years," said Jesse Laflamme, owner and CEO of organic egg producer Pete and Gerry's Organics. "Certified organic egg, dairy and animal producers hold their operations to a higher standard of animal welfare than is required, because it is the right thing to do and it is what our customers expect. The organic industry works hard to live up to the expectation of its consumers, and we expect the USDA to live up to its mandate to oversee the industry in a way that is fair and will enable us to continue to prosper."
The lawsuit alleges:
• That USDA has violated the Administrative Procedure Act because the repeated delays were issued without any public process.
• That USDA has violated the Administrative Procedure Act and abused its discretion by proposing action to indefinitely delay or kill the rule, in stark contrast to the established public process.
• That USDA has violated the Organic Foods Production Act and its consultation provisions enacted to apply in just these circumstances for industry and public stakeholders to revise, refine, and advance organic standards via a well-defined process.
• That the Trump Administration Executive Order freezing regulations should not apply to the voluntary industry-driven organic standards that allow for businesses to opt in or out.
The OTA is asking the court to reverse the delay to pass the final rule, eliminate the options proposed that further delay, allow for a rewrite of the final rule, or eliminate the rule, and make the final rule effective immediately and as written.