Ninth Circuit Hydroponics Food Safety Appeal Begins

Appellate briefing has begun in the Ninth Circuit in a food safety case filed against the Secretary of Agriculture, Thomas J. Vilsack. The suit was appealed by the plaintiffs earlier this year, including the Center for Food Safety and a group of farms. The case concerns the growing hydroponics industry.

The Northern District of California rejected allegations in March that the United States Department of Agriculture (USDA) ignored “growing concerns over inconsistencies in organic production,” despite numerous calls to action and petitions from different parties.

Other plaintiffs include Swanton Berry Farms, Inc., Full Belly Farm, Inc., Durst Organic Growers, Inc., Jacobs Farm Del Cabo, Inc., Long Wind Farm, Inc., Onecert, Inc., and the Maine Organic Farmers and Gardeners Association.

The plaintiffs asserted in the initial suit that the USDA violated the Organic Foods Production Act of 1990 (OFPA) and the Administrative Procedure Act (APA) when they failed to take action.

The use of hydroponics in organic farming, though allowed by the USDA, is one that the plaintiffs believe is “incompatible” with the principles of organic farming. Efforts to advocate against hydroponics have been futile thus far with the USDA, which prompted the plaintiffs to file suit.

The plaintiffs appealed the decision below as they believed it “underscored the ways in which USDA’s decision [to not take action despite pressure] violated OFPA and the APA.” Further, they explain their belief that the court ignored the statutory context when making their decision.

Through the appeal process, the plaintiffs are seeking for the USDA denial of their hydroponics petition be vacated, and that the agency reconsider their position on the issue in light of the OFPA, which the plaintiffs believe should not exempt hydroponic operations.

The plaintiffs are represented by the Center for Food Safety.