Harvey v. Veneman, the 80-20 Rule and the Dilution of Organic Regulations

In response to the Final Rule issued in 2000, a producer and consumer of organic foods, Arthur Harvey, filed for declaratory and injunctive relief, alleging that multiple provisions of the Final Rule were inconsistent with the OFPA and weakened organic food production standards. (1) Although the District Court dismissed one claim for lack of standing and granted summary judgment in favor of the USDA on the remaining eight, upon appeal the First Circuit Court sided with Harvey on three counts, affecting the implementation of the NOP by qualifying or invalidating agency regulations.

The first claim, Count One, which was remanded to the District Court, pertained to the use of non-organic ingredients in products labeled as certified organic.  Harvey claimed that § 205.606 created a blanket exemption for the use of non-organic ingredients not on the National List and therefore violated the review process required by §§ 6517 and 6518 in the OFPA. (2)  The District Court issued a declaratory judgment stating that §205.606 did not establish a blanket exemption to the National List requirements. (3)   The USDA issued a clarified meaning, consistent with the National List requirements of the OFPA but, striving for a smooth transition, stated that the clarified meaning would not be effective until a year from judgment.  Through its attempt to create a smooth transition process, the Department allowed the public to continue purchasing products that contained synthetic ingredients with the USDA Organic label for an entire year.  These products were purchased by consumers, most likely oblivious to the political maneuvers in Washington, with the expectations that the food they were consuming was free of synthetic substances.  If the consumers purchasing these temporarily exempted products were aware of the implications of this act of Congress, it is reasonable to assume that at least a portion, and most likely a significant one at that, would not have opted to purchase those more expensive “organic” products.  This outcome is consistent with the USDA’s tendency to favor the interests of Agri-Business over the welfare of the consuming public.

The second claim remanded to the District Court, Count Three of the Harvey appeal, pertains to the use of synthetic substances in processing organic materials.  Harvey challenged 7 C.F.R. §205.600(b) and the portion of §205.605(b) that permits synthetic substances as ingredients in, or as substances on, processed products labeled as “organic.” (4)  The Circuit Court concluded that the regulations contravened the plain language of the OFPA. In response the District Court ordered the Secretary of the USDA to publish new rules implementing the Circuit Court’s judgment within one year of the date of the judgment.  However, Congress amended the OFPA in the FY2006 Agriculture Appropriations Act, allowing the use of synthetics on the National List during processing or post harvest handling of a product labeled organic. (5)  This action by Congress allowed the USDA to avoid making any changes to the regulations in question by adjusting the law to complement the regulations put forth in the Final Rule. 

The outcome concerning Count Three of Harvey v Veneman displays a penchant for the Government to favor business at the expense of the taxpaying consumers.  Congress effectively weakened the USDA organic standards by conforming to the USDA regulations which were clearly more sympathetic to organic producers than to the expectations and welfare of consumers. 

The third claim, Count Seven, which the Circuit Court found in Harvey’s favor, pertained to the conversion of dairy herds to organic production.  The OFPA requires that before labeling a dairy animal’s products as organically produced, the herd must be fed 100% organic feed for at least the twelve month period immediately preceding the sale of such milk or milk products. (6)  However, the Final Rule (§205.236(a) (2)), allowed whole dairy herds transitioning to organic production to use 80% organic feed for the first nine months and 100% organic feed for the final three months. (7) This section was referred to as the 80-20 rule.  Despite the Circuit Court remanding the matter to the District Court with a summary judgment for Harvey, which required the USDA to change the regulations to conform to the OFPA, Congress again nullified the Courts’ actions.  In the FY2006 agriculture appropriations act, Congress amended 7 U.S.C. §6509(e) (2) allowing crops and forage from land included in the organic system plan of a dairy farm that is in the third year of organic conversion to be consumed by the dairy animals during the 12-month period immediately prior to the sale of the organic milk or milk products.(8)  This action by Congress lead to the weakening of organic standards; providing factory style dairies with an advantage over small scale organic dairy farmers and compromised the quality of organic dairy products purchased by consumers at premium prices.

(1) Greene, Christine. "The Cost of Low Price Organics." Alabama Law Review 59.3 (2008): 799-830. Academic Search Complete. Web. 1 July 2011.

(2) Id

(3) Vina, Stephen . "Harvey v. Veneman and the National Organic Program: A Legal ." CRS Report for Congress RS22318 (2006): n. pag. National Law Center. Web. 18 July 2011.

(4) Id

(5) Greene, Christine. "The Cost of Low Price Organics." Alabama Law Review 59.3 (2008): 799-830. Academic Search Complete. Web. 1 July 2011.

(6) Id                                                                                                                                        

(7) Vina, Stephen . "Harvey v. Veneman and the National Organic Program: A Legal ." CRS Report for Congress RS22318 (2006): n. pag. National Law Center. Web. 18 July 2011.

 (8) Greene, Christine. "The Cost of Low Price Organics." Alabama Law Review 59.3 (2008): 799-830. Academic Search Complete. Web. 1 July 2011.