A very short history of the processing rule and court action.
Why did USDA ban the sale of unprocessed, raw California almonds to U.S. Consumers? The short answer is because California’s almond agribusiness asked USDA for the ban. The Almond Board of California asked USDA to require all almonds, even organic, to be gassed with propylene oxide or heat pasteurized because of very unusual contamination of some non-organic almonds in 2001 and 2004. The rule denies U.S. Consumers a choice to buy raw, unprocessed almonds grown in California. USDA’s 2007 processing rule decision was published in the Federal Rgister, and is available for you to read below.
In 2008, California growers of organic and natural raw almonds filed suit. Growers claim that USDA does not have authority from Congress to ban the sale of natural and safe unprocessed raw almonds. Food safety authority for produce lies with the FDA, not USDA. Consumers should at least have an informed choice.
USDA responded to the almond growers’ 2008 lawsuit by trying to avoid a court decision, and to increase the time and money required for Almond Growers to seek justice. First, USDA argued that almond growers are precluded by law from suing USDA, even though the rule hurt farmers, hurt natural food consumers, and was claimed to be beyond USDA’s authority. Almond Growers had to look to the Court of Appeals to affirm their right to sue.
The case then went back to the trial judge that originally held almond growers could not sue USDA. The judge eventually decided that USDA has authority under a 1935 law to require processing of produce grown by American farmers before it is sold to consumers. The judge’s January 2012 decision is available for you to read below.
Almond Growers again appealed to the Court of Appeals. Four legal briefs have been filed. You can read the briefs on links below. Decide for yourself…
-- Did USDA act lawlessly?
-- Were USDA’s lawyers truthful in their arguments?
-- Is USDA irresponsibly inclined to do whatever big agribusiness wants it to do?
-- Is it a good idea to ban the sale of safe, unprocessed California almonds to consumers who want them?
-- Do you think that a US agency should tell consumers who want raw, unprocessed produce – “don’t buy Made in America.”
On February 22, 2013, the U.S. Court of Appeals released a decision that avoided the question of whether USDA had legal authority to mandate processing of all California almonds. The Court held that, under its own judicial policy, it would not consider the issue of agency authority because no one specifically raised the issue during the 45-day comment period prior to publication of the final rule in March 2007. You can read the Court’s opinion by clicking on the button below.
Interestingly, large almond processors and cooperatives who proposed the treatment rule to USDA had raised the issue of agency authority in June 2004, at a committee meeting of the Almond Board of California. Industry proponents were later privately informed by USDA that the agency had reviewed the issue and concluded that there was legal authority. But this agency interpretation of its authority was not disclosed to the general public at any time, and was carefully omitted from the notice of proposed rulemaking. There was no reason, therefore, for industry proponents to submit comments on authority for the almond treatment rule. They already knew of USDA’s opinion. Small almond growers and the general public, on the other hand, were kept in the dark by USDA and were unaware of the agency authority issue. As Judge Williams put it in his concurring opinion in this case, the almond growers were not “adequately lawyered-up at the rulemaking stage.”
In 2008, California growers of organic and natural raw almonds filed suit. Growers claim that USDA does not have authority from Congress to ban the sale of natural and safe unprocessed raw almonds. Food safety authority for produce lies with the FDA, not USDA. Consumers should at least have an informed choice.
USDA responded to the almond growers’ 2008 lawsuit by trying to avoid a court decision, and to increase the time and money required for Almond Growers to seek justice. First, USDA argued that almond growers are precluded by law from suing USDA, even though the rule hurt farmers, hurt natural food consumers, and was claimed to be beyond USDA’s authority. Almond Growers had to look to the Court of Appeals to affirm their right to sue.
The case then went back to the trial judge that originally held almond growers could not sue USDA. The judge eventually decided that USDA has authority under a 1935 law to require processing of produce grown by American farmers before it is sold to consumers. The judge’s January 2012 decision is available for you to read below.
Almond Growers again appealed to the Court of Appeals. Four legal briefs have been filed. You can read the briefs on links below. Decide for yourself…
-- Did USDA act lawlessly?
-- Were USDA’s lawyers truthful in their arguments?
-- Is USDA irresponsibly inclined to do whatever big agribusiness wants it to do?
-- Is it a good idea to ban the sale of safe, unprocessed California almonds to consumers who want them?
-- Do you think that a US agency should tell consumers who want raw, unprocessed produce – “don’t buy Made in America.”
On February 22, 2013, the U.S. Court of Appeals released a decision that avoided the question of whether USDA had legal authority to mandate processing of all California almonds. The Court held that, under its own judicial policy, it would not consider the issue of agency authority because no one specifically raised the issue during the 45-day comment period prior to publication of the final rule in March 2007. You can read the Court’s opinion by clicking on the button below.
Interestingly, large almond processors and cooperatives who proposed the treatment rule to USDA had raised the issue of agency authority in June 2004, at a committee meeting of the Almond Board of California. Industry proponents were later privately informed by USDA that the agency had reviewed the issue and concluded that there was legal authority. But this agency interpretation of its authority was not disclosed to the general public at any time, and was carefully omitted from the notice of proposed rulemaking. There was no reason, therefore, for industry proponents to submit comments on authority for the almond treatment rule. They already knew of USDA’s opinion. Small almond growers and the general public, on the other hand, were kept in the dark by USDA and were unaware of the agency authority issue. As Judge Williams put it in his concurring opinion in this case, the almond growers were not “adequately lawyered-up at the rulemaking stage.”
Read the documents, briefs and decisions in this fight by clicking on the buttons below;
growers_appeal_brief_as_filed_and_stamped.pdf | |
File Size: | 382 kb |
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amicus_brief_as_filed.pdf | |
File Size: | 163 kb |
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usda_appeal_brief_-_koretoff_dccir.pdf | |
File Size: | 555 kb |
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reply_brief_final_-_almond_growers.pdf | |
File Size: | 281 kb |
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