Once again it’s government and industry on one side, and organic farmers on the other. Action Alert!
Last Friday, the DC Court of Appeals held that California almond producers don’t currently have the right to even argue that the USDA overstepped the bounds of its authority with the Almond Rule.
The USDA’s Almond Rule, issued in 2007, ordered all almond growers to “sterilize” almonds in one of several ways: heat them using steam, oil roast or blanch them, or treat them with propylene oxide (PPO). As we told you at the time and again last year, these are all poor options:
- Roasting and blanching completely cook the nuts, so they are no longer raw.
- Steam reduces nutrient content and also cooks the nuts.
- PPO, a “probable human carcinogen,” is an extremely volatile liquid now used in the production of polyurethane plastics, and once used as a racing fuel until it was banned for being too dangerous.
Almond producers argue that labeling such almonds “raw” is therefore misleading—they are actually cooked or chemically treated. They want to argue that the Almond Rule oversteps the USDA’s authority—but the court ruled the almond producers lost the right to make that argument because they didn’t raise their concerns during the rule-making process.
However, the rule-making process in itself was unfair and legally questionable. The USDA handpicked 115 almond growers and handlers—out of over 6,000—to invite them to comment, and consumers and retailers were almost universally unaware of the proposed rule. Because of this, there were a total of only eighteen public comments.
During the rule-making process, the USDA merely regurgitated the findings of the Almond Board, a biased and financially motivated stakeholder. The rule-making process is supposed to be conducted by an unbiased decision-maker without any financial interests, but six out of the ten seats on the Almond Board are controlled by Blue Diamond, an enormous almond producer. The interests of small, organic almond farmers weren’t even considered.
The Almond Rule isn’t just about almonds. The rule actually expands the USDA’s powers, allowing the agency to mandate how dairy, fruit, vegetables, nuts, and animals are processed—something they have never been able to do. The USDA is legally allowed to establish minimum standards for farm products based on grade, size, or quality; they can say, for example, that “Almonds must be free of salmonella.” But the Almond Rule changed all that, allowing USDA to claim it can mandate how that outcome is achieved (e.g., “Almonds must be made salmonella-free via one of the following pasteurization processes…”).
If this newly asserted authority is upheld, it could be the USDA’s latest weapon in the war against raw foods. Instead of saying that milk needs to be pasteurized, it can now dictate the way it is pasteurized. This sort of authority favors ideological zeal over real scientific evidence, as we saw with the CDC’s deeply flawed study on raw milk, or the more recent (but equally flawed) raw cheese study.
If the government is this enthusiastic about shielding consumers from the extremely small risk from raw almonds, why can’t they get excited about protecting us from untested GMOs or the larger, nearly annual salmonella outbreaks from ground beef? (USDA, take note: “more processed” doesn’t necessarily mean “safer”!)
We may have lost this battle, but not necessarily the war. The DC Court of Appeals sidestepped the issue and didn’t rule on the legality of the Almond Rule itself, just said that almond farmers “missed the boat” on expressing their reservations by not raising objections during the rule-making process, although that was done as much behind-closed-doors as USDA could make it. For further litigation, a producer must convince the court that it has actually been harmed, or some brave company must defy the USDA and after being enjoined to stop and take the agency to court. If any of this happens, the producers can go back to court and spend money and time all over again. ANH-USA will be conferring with friends and colleagues about how to try to make this happen.
Action Alert! In the meantime, we should all voice our complaint to the USDA about its high-handed tactics and absurd Almond Rule and, importantly, send a copy to Congress. Please send your message today!
