Last month, a federal judge in California refused to dismiss a lawsuit challenging U.S. Department of Agriculture (USDA) actions pertaining to its statutory oversight of organic food.

The case, filed last year by more than a dozen groups, challenges changes to the procedures under which the agency determines whether certain synthetic substances may continue to be used in food the agency permits to be labeled as organic.

Under the Organic Foods Production Act of 1990, which gave the USDA authority over organic-food labeling, the agency maintains a list of synthetic substances that may be used in organic products. Decisions about any substance on the list had been forced to sunset after five years unless two-thirds of the agency’s National Organic Standards Board (NOSB) recommended a given substance remain on the list.

But the USDA changed the rules in 2013, delegating much of the decisionmaking power over synthetic substances to a NOSB subcommittee. Since that time, the plaintiffs in the lawsuit argue that this USDA inaction “has allowed more than 20 synthetic substances to continue being used in organic agriculture.”

The lawsuit, which alleges “the USDA promulgated the regulation without providing the public the opportunity for notice and comment and acted in an arbitrary and capricious manner[,]” is just the latest in a string of litigation and controversy surrounding the agency’s oversight of organic-food labeling.

This wasn’t the organic-food labeling system Congress promised us in 1990. I described briefly the history of organic-food labeling in a 2010 article in the Chapman Law Review(citations omitted):

“California passed the nation’s first true organic certification law in 1979. Though Oregon’s law preceded that of California, Oregon’s law was chiefly an anti-fraud measure intended only to classify which producers could advertise their products as ‘organic.’ California regulations built upon Oregon’s and in addition defined the term ‘synthetic,’ contained public disclosure provisions, and required specific organic labeling language. In 1982, California amended the 1979 regulations, making the state the first to define the term ‘organic.’ In 1990, California again amended its law, permitting public agencies or private certifiers like [California Certified Organic Farmers] CCOF, today the nation’s largest such body, to inspect growers to ensure compliance with the regulations…..More Here