Thursday, March 02, 2006

Harvey v. Veneman, a case combining organic "chemistry" and ad law

In Harvey v. Veneman, 396 F.3d 28; 2005 U.S. App. LEXIS 1265, appellant Harvey convinced the First Circuit that Secretary Veneman had made some mistakes in formulating rules implementing the OFPA. Within the year, Congress was implementing legislation to undue some of what the First Circuit had done.

from the opinion:

Congress enacted the Organic Foods Production Act [OFPA] in 1990 to "establish national standards governing the marketing" of organically produced agricultural products, to
"assure consumers that organically produced products meet a consistent
standard," and to "facilitate interstate commerce in" organically produced food. 7 U.S.C. § 6501. The Act furthers these purposes by establishing a national
certification program for producers and handlers of organic products and by regulating the labeling of organic products. Id. §§ 6503(a), 6504, 6505(a)(1)(A).

The Act requires the Secretary to promulgate regulations "to carry out" OFPA. Id. § 6521. The Secretary published the Final Rule at issue in this case in December 2000 and it became effective on October 21, 2002.

Of count 3:

Count 3: Harvey contends that the Rule's provisions permitting the
use of synthetic substances in processing contravene OFPA, which
prohibits the use of synthetic substances generally and specifically forbids
the addition of synthetic ingredients in processing.

The court said:

Harvey next challenges two parts of the Rule permitting synthetic
substances to be used in processed organic foods. 7 C.F.R. §§ 205.600(b),
205.605(b). Section 205.600(b) provides that synthetic substances may be used "as a
processing aid or adjuvant" if they meet six criteria; § 205.605(b)
lists thirty-eight synthetic substances specifically allowed in or on
processed products labeled as organic. These provisions, Harvey contends,
contravene the plain language of OFPA, which provides that certified handling
operations "shall not, with respect to any agricultural product covered by this title . . . add any synthetic ingredient during the processing or any postharvest
handling of this product." 7 U.S.C. § 6510(a)(1). n2 Harvey is correct; the
challenged regulations lie outside of the scope of authority granted the [**25]
Secretary by OFPA.

There is a nice line:

Section 6517(c)(1)(B)(iii)simply does not say what the Secretary needs it to say.

There is a cite to Chevron:

The challenged regulations are contrary to the plain language of
OFPA and therefore exceed the Secretary's statutory authority. See Chevron, 467
U.S. at 842-43 ("If the intent of Congress is clear, that is the end of the
matter. . . ."). We therefore reverse the District Court's grant of summary
judgment to the Secretary on this count. n5


"That deference is described in the familiar two-step test" of
Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-44, 81 L. Ed. 2d 694, 104 S.
Ct. 2778 (1984), according to which we first use traditional tools of statutory
construction to determine congressional intent.


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