Wednesday, December 2, 2009

Administrative Law Judge Enjoins Organic Violator

Promiseland Livestock, LLC, one of the largest organic cattle producers in the nation, has been suspended from the organic market for four years, following the decision of a USDA administrative law judge.

Complaints were filed against Promiseland by the Cornucopia Institute as early as 2005, claiming that the operation was not feeding organic grain to its cattle, was selling fraudulent organic feed, and was "laundering" conventional cattle as organic.

The decision in the case focused on the requirements in the Organic Foods Production Act and the National Organic Program's regulations regarding availability of records. The Act requires that producers not only keep careful records, but also make them available for inspection by the certifying agent, the USDA, and the governing state officials. (7 USC 6506(b)(1)(B).) The regulations further state that records must "[f]ully disclose all activities and transactions" (7 CFR 205.103(b)(2)) and make such records available for inspection and copying by the proper authorities during normal business hours (7 CFR 205.103(c)). The decision notes that Promiseland initially bought time by switching certifying agents and then, despite a large amount of leniency on the part of the inspectors, simply refused to provide the records requested to the inspectors (pg. 5).

The decision states that "operation under the auspices of the USDA NOP is a privilege rather than a right," and that operators cannot defer inspection by invoking advice of counsel, requesting specific schedules of the documents to be inspected, or requiring that a corporate official be present at the inspection (pg. 12). (Side note: what kind of counsel says "no, don't comply with the very specific and clear regulation"?)

In sum, the ALJ, Peter M. Davenport, did not make a finding that Promiseland
actually did the things of which it was accused. As he notes, however, the integrity of the NOP program relies almost entirely on record keeping and access by inspectors to those records. This case took several years to resolve, during which time who knows what sort of "conventional" food Promiseland managed to pass off as organic. Good on the USDA for finally taking action.