Federal lawsuit filed challenging USDA mandated almond treatment

I had some coverage of the raw almond dispute from my coverage of the fruit and vegetable advisory committee meeting on Monday. Today we received a follow up press release from Cornucopia Institute about their lawsuit. The legal point of law questions the federal marketing order's authority to regulate food safety issues, which obviously has huge implications for other marketing agreements and marketing orders now in effect or contemplated in the future for fresh produce. From the release:

WASHINGTON, D.C. – A group of fifteen American almond growers and wholesale nut handlers filed a lawsuit in the Washington, D.C. federal court on Tuesday, September 9 seeking to repeal a controversial USDA-mandated treatment program for California-grown raw almonds.

The almond farmers and handlers contend that their businesses have been seriously damaged and their futures jeopardized by a requirement that raw almonds be treated with propylene oxide (a toxic fumigant recognized as a carcinogen by the EPA) or steam-heated before they can be sold to American consumers. Foreign-grown almonds are exempt from the treatment scheme and are rapidly displacing raw domestic nuts in the marketplace.

Tens of thousands of angry consumers have contacted the USDA to protest the compulsory almond treatment since the agency’s new regulation went into effect one year ago. Some have expressed outrage that even though the nuts have been processed with a fumigant, or heat, they will still be labeled as "raw."

“The USDA’s raw almond treatment mandate has been economically devastating to many family-scale and organic almond farmers in California,” said Will Fantle, the research director for the Wisconsin-based Cornucopia Institute. Cornucopia has been working with almond farmers and handlers to address the negative impacts of the USDA rule, including the loss of markets to foreign nuts.

The USDA, in consultation with the Almond Board of California, invoked its treatment plan on September 1, 2007 alleging that it was a necessary food safety requirement. Salmonella-tainted almonds twice this decade caused outbreaks of food related illnesses. USDA investigators were never able to determine how salmonella bacteria somehow contaminated the raw almonds that caused the food illnesses but they were able to trace back one of the contaminations, in part, to the country's largest "factory farm," growing almonds and pistachios on over 9000 acres.Instead of insisting that giant growers reduce risky practices, the USDA invoked a rule that requires the gassing or steam-heating of California raw almonds in a way that many consumers have found unacceptable.

"For those of us who are interested in eating fresh and wholesome food the USDA's plan, to protect the largest corporate agribusinesses against liability, amounts to the adulteration of our food supply," said Jill Richardson, a consumer activist and blogger at: www.lavidalocavore.org.

“This ruling is a financial disaster and has closed a major customer group that we have built up over the years,” said Dan Hyman, an almond grower and owner of D&S Ranches in Selma, CA. His almond business relies on direct sales to consumers over the internet. Hyman notes that his customers were never consulted by the USDA or the Almond Board before they were denied “a healthy whole natural raw food that they have eaten with confidence, enjoyment and benefit for decades.”

The lawsuit contends that the USDA exceeded its authority, which is narrowly limited to regulating quality concerns in almonds such as dirt, appearance and mold. And even if the USDA sought to regulate bacterial contamination, the questionable expansion of its authority demanded a full evidentiary hearing and a producer referendum, to garner public input – neither of which were undertaken by the USDA.

“The fact that almond growers were not permitted to fully participate in developing and approving this rule undermines its legitimacy,” said Ryan Miltner, the attorney representing the almond growers. “Rather than raising the level of income for farmers and providing handlers with orderly marketing conditions,” added Miltner, “this particular regulation creates classes of economic winners and losers. That type of discriminatory economic segregation is anathema to the intended purpose of the federal marketing order system. “

Retailers of raw almonds have also been expressing their unhappiness, based on feedback from their customers, with the raw almond treatment rule. “We've been distributing almonds grown by family farmers in California for over 30 years and we regard them as the common heritage of the American people,” said Dr. Jesse Schwartz, President of Living Tree Community Foods in Berkeley, CA. “We can think of no reply more fitting than to affirm our faith that ultimately the wisdom and good sense of the American people will prevail in this lawsuit.”

Barth Anderson, Research & Development Coordinator for The Wedge, a Minneapolis-based grocery cooperative, noted that their mission has always been to support family farmers. “We weren't surprised when Wedge shoppers and members wrote nearly 500 individual letters expressing disapproval of the USDA's mandatory fumigation law for domestic almonds,” Anderson said. “Our members especially did not like the idea that fumigated almonds could be called ‘raw.’”

According to the USDA, there is no requirement for retailers to alert consumers to the toxic, propylene oxide fumigation or steam treatment applied to raw almonds from California.

“This rule is killing the California Organic Almond business,” said Steve Koretoff, a plaintiff in the lawsuit and owner of Purity Organics located in Kerman, CA. “Because foreign almonds do not have to be pasteurized their price is going up while our price is going down because of the rule. It makes no sense.” Koretoff added.

Two groups of consumers that have been particularly vocal in their opposition to the almond treatment rule are raw food enthusiasts and vegans. These consumers may obtain as much as 30% of their daily protein intake from raw almonds, after grinding them for flour and other uses. Studies exploring nutritional impacts following fumigant and steam treatment have yet to be publicly released. A Cornucopia Institute freedom of information request for the documents is awaiting a response from the USDA.

“We raw vegans believe raw foods, from non-animal sources, contains valuable nutrients – some not yet well-understood by scientists,” stated Joan Levin, a retired attorney living in Chicago. “These nutrients can be destroyed by heat, radiation and toxic chemicals. We support the continued availability of fresh produce free of industrial age tampering,” explained Levin.

Cornucopia’s Fantle noted that the Washington, D.C. federal district court has already assigned the almond lawsuit a case number, beginning its move through the judicial system. “We believe this is a strong legal case and hope for a favorable decision in time to protect this year’s almond harvest,” Fantle said.

TK: You may remember the USDA wanted but didn't get explicit language in the farm bill concerning marketing orders and food safety. It looks like the courts may have to settle this question. From the managers' statement on the final version of the farm bill:


(10) Implementation of food safety programs under marketing orders The House bill amends section 8c of the Agricultural Adjustment Act by authorizing the implementation of quality-related food safety programs under specialty crop marketing orders. (Section 10106)
The Senate amendment contains no comparable provision.
The Conference substitute deletes the House provision.
The Managers are aware that the Secretary has issued marketing orders which include quality-related provisions intended to enhance the safety of the commodities to which they are applicable. Therefore, the managers recognize that statutory language is unnecessary. It is not the Manager's intention to alter the Secretary's authority to incorporate practices to improve the safety of commodities in marketing orders, but rather, to encourage the development of programs of quality-related good agricultural, manufacturing and handling practices with full industry and public participation and in consultation with the Food and Drug Administration.