In 1990, Congress enacted the Organic Foods Production Act of 1990 (OFPA) in response to consumer and industry demands for uniform standards in organic production. The drafters recognized that the basic tenet of the legislation was that organic foods would be produced without the use of synthetic materials, but they left room for minimal exceptions in the National List of Allowed and Prohibited Substances (the National List). The National List enumerates the exemptions for synthetic substances, as well as prohibitions of natural substances, such as arsenic, in organic production. In September 2013, the USDA amended the Sunset Process, which is one of the processes by which the National List is maintained. Prior to the 2013 amendment, an exemption for a synthetic substance was reviewed by the National Organic Standards Board (NOSB) following five years of its initial approval, and if a two-thirds majority of the NOSB did not vote affirmatively to reapprove the substance for another five years, it would expire and could no longer be used in organic production. The 2013 amendment reverses the Sunset Process and requires that the NOSB instead vote by a two-thirds majority for removal, but if such a vote fails to pass muster the substance is automatically renewed for another five years.
This note proposes that the USDA restore the Sunset Process as it stood prior to the 2013 amendment in order to realign the process with the intent and plain letter of the OFPA. The drafters of the OFPA intended a limited National List to reflect consumers’ expectation that organic foods contain no synthetic ingredients. The amended Sunset Process will continue to expand the National List, as exemptions will automatically renew every five years without a two-thirds NOSB vote for removal. Further, the amended Sunset Process alters the substance of the NOSB’s vote and undermines its pivotal role in representing the interests of the organic community. This note further critiques the 2013 amendment to the Sunset Process and concludes that it has diluted organic standards and diminished the organic label’s integrity. As a result, the unprecedented growth that the organic industry has seen over the last few years is threatened because consumers’ willingness to pay premium prices for organic foods is largely a consequence of their belief that organic foods are produced without the use of synthetics.
Perpetual Twilight: How the USDA's Change to the Sunset Process Violates the Organic Foods Production Act of 1990,
81 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol81/iss4/16