Can marketing orders regulate food safety?

Does the USDA have the legal authority to regulate food safety within the scope of marketing orders? Some almond growers are challenging the USDA's opinion that the agency does. Go here for the complete legal brief of the Cornucopia Institute's lawsuit against the USDA. From the summary of action:


Plaintiffs, growers, grower-handlers, and handlers of almonds in the State of California challenge the Final Rule of the United States Department of Agriculture (“USDA”) that unlawfully establishes outgoing quality control requirements on almonds grown in California. 72 Fed. Reg. 15021 (March 30, 2007), codified at 7 C.F.R. § 981.442(b) (“Final Rule”). The Final Rule restricts the available markets for Plaintiff almond growers’ almond crop, depriving them of revenue for their almonds in whole or in part. For the Plaintiff handlers, the Final Rule has resulted in the foreclosure of long-established markets for their almonds and in the most severe cases will result in the financial ruin of these growers’ operations. Similarly, the Final Rule has operated to reduce the amount that handlers of almonds can garner from the ultimate sale of their product and has eliminated established markets for untreated almonds. The marketing of almonds is governed by a marketing order issued under the authority of the Agricultural Marketing Agreement Act of 1937, as amended (“AMAA”). 7 U.S.C. § 601 et seq. Ultimate authority over the almond marketing order is vested in the Secretary of USDA. The AMAA provides the Secretary of USDA with limited authority to establish marketing orders for agricultural crops, including almonds. The AMAA, unlike many administrative statutes, does not grant general authority but instead carefully sets forth the terms that may be included in marketing orders. In the case of almonds, the permissible provisions are set forth at 7 U.S.C. § 608c(6) and (7).Plaintiffs seek a declaration that the outgoing quality regulations adopted by the Final Rule: (1) exceed the authority granted by 7 C.F.R. § 981.42, upon which USDA has premised the Final Rule and thus constitutes an ultra vires act; (2) if within the authority of the Secretary, creates a substantive rule adopted without the use of a formal rulemaking process and grower referendum, as required by the AMAA; and (3) exceeds the limited authority granted to the Secretary under the AMAA to regulate the outgoing quality of covered commodities and thus constitutes an ultra vires act. Plaintiffs further seek a declaration that the Secretary’s actions are unlawful and should be set aside by the Court pursuant to the Administrative Procedure Act, 5 U.S.C. §706, on the grounds that the Final Rule is arbitrary, capricious and not in accordance with law.