May 11, 2021

Volume XI, Number 131

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May 11, 2021

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May 10, 2021

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Court Backs USDA: Hydroponics Qualify for Organic

On March 18, 2021, the U.S. District Court for the Northern District of California granted the U.S. Department of Agriculture’s (USDA) motion for summary judgement and found that USDA did not err in deciding that the Organic Foods Production Act (OFPA) does not prohibit hydroponic systems (where crops are grown without soil) from qualifying for the National Organic Program (NOP). In the same order, the court denied the Center for Food Safety’s (CFS) motion for summary judgement and motion to add materials to the administrative record.

The court found that CFS had not provided enough evidence to show that USDA acted arbitrarily and capriciously under the Administrative Procedure Act (APA) such that there was a genuine issue of material fact. Relying on longstanding principles of deference to agencies under the APA, the court held that USDA had reasonably read the OFPA as not prohibiting hydroponics from qualifying as organic if they otherwise meet the NOP’s requirements. It further concluded that CFS had not shown further consideration of comments and information that had been excluded from the administrative record would have changed USDA’s decision.

By way of background, CFS submitted a rulemaking petition to USDA in 2019 requesting the agency prohibit organic certification of hydroponics, systems that it views as inconsistent with organic’s primary goal of improving soil fertility. After USDA denied their request, CFS, together with a group of organic farmers and stakeholders, sued to challenge the petition denial (the primary issues in the case are summarized here).

CFS has not yet announced its next steps. We will continue to monitor this hotly contested issue for updates.

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© 2021 Keller and Heckman LLPNational Law Review, Volume XI, Number 99
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Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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