Court to Farmers: “You Don’t Have the Right to Fight the USDA!”

almondsOnce again it’s government and industry on one side, and organic farmers on the other. Action Alert!

Last Friday, the DC Court of Appeals held that California almond producers don’t currently have the right to even argue that the USDA overstepped the bounds of its authority with the Almond Rule.

The USDA’s Almond Rule, issued in 2007, ordered all almond growers to “sterilize” almonds in one of several ways: heat them using steam, oil roast or blanch them, or treat them with propylene oxide (PPO). As we told you at the time and again last year, these are all poor options:

  • Roasting and blanching completely cook the nuts, so they are no longer raw.
  • Steam reduces nutrient content and also cooks the nuts.
  • PPO, a “probable human carcinogen,” is an extremely volatile liquid now used in the production of polyurethane plastics, and once used as a racing fuel until it was banned for being too dangerous.

Almond producers argue that labeling such almonds “raw” is therefore misleading—they are actually cooked or chemically treated. They want to argue that the Almond Rule oversteps the USDA’s authority—but the court ruled the almond producers lost the right to make that argument because they didn’t raise their concerns during the rule-making process.

However, the rule-making process in itself was unfair and legally questionable. The USDA handpicked 115 almond growers and handlers—out of over 6,000—to invite them to comment, and consumers and retailers were almost universally unaware of the proposed rule. Because of this, there were a total of only eighteen public comments.

During the rule-making process, the USDA merely regurgitated the findings of the Almond Board, a biased and financially motivated stakeholder. The rule-making process is supposed to be conducted by an unbiased decision-maker without any financial interests, but six out of the ten seats on the Almond Board are controlled by Blue Diamond, an enormous almond producer. The interests of small, organic almond farmers weren’t even considered.

The Almond Rule isn’t just about almonds. The rule actually expands the USDA’s powers, allowing the agency to mandate how dairy, fruit, vegetables, nuts, and animals are processed—something they have never been able to do. The USDA is legally allowed to establish minimum standards for farm products based on grade, size, or quality; they can say, for example, that “Almonds must be free of salmonella.” But the Almond Rule changed all that, allowing USDA to claim it can mandate how that outcome is achieved (e.g., “Almonds must be made salmonella-free via one of the following pasteurization processes…”).

If this newly asserted authority is upheld, it could be the USDA’s latest weapon in the war against raw foods. Instead of saying that milk needs to be pasteurized, it can now dictate the way it is pasteurized. This sort of authority favors ideological zeal over real scientific evidence, as we saw with the CDC’s deeply flawed study on raw milk, or the more recent (but equally flawed) raw cheese study.

If the government is this enthusiastic about shielding consumers from the extremely small risk from raw almonds, why can’t they get excited about protecting us from untested GMOs or the larger, nearly annual salmonella outbreaks from ground beef? (USDA, take note: “more processed” doesn’t necessarily mean “safer”!)

We may have lost this battle, but not necessarily the war. The DC Court of Appeals sidestepped the issue and didn’t rule on the legality of the Almond Rule itself, just said that almond farmers “missed the boat” on expressing their reservations by not raising objections during the rule-making process, although that was done as much behind-closed-doors as USDA could make it. For further litigation, a producer must convince the court that it has actually been harmed, or some brave company must defy the USDA and after being enjoined to stop and take the agency to court. If any of this happens, the producers can go back to court and spend money and time all over again. ANH-USA will be conferring with friends and colleagues about how to try to make this happen.

Action Alert! In the meantime, we should all voice our complaint to the USDA about its high-handed tactics and absurd Almond Rule and, importantly, send a copy to Congress. Please send your message today!

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  1. Where is our medical experts, us lay folks can hardly be expected to argue this case in our own words. The USDA is a gov’t bully, always has been.

    1. Sometimes the “experts” have an agenda – or are afraid of losing their research funding. An expert is one who know more and more about less and less.

  2. It is totally wrong that we, the consumers are not able to enjoy “raw almonds.” All of this sterialization and processing will have consequences. There is and has been no problem, but tyhis agency seems to create problems and put the fix or oneus onto the grower. All this leads up to higher costs and food less fit to eat.
    This case should go to a higher court so we can have the justice needed. After all, the initial group of growers were hand picked and a very small percentage of growers. This was all wrong and our system of justice just seems to be all but gone now.

  3. Hey, here’s an idea. Why not strip the USDA of 100% of its budget and send every one of its smarmy little fascist minions home? We could do the same with the FDA. That should suck up a big chunk of the dreaded cuts (in proposed spending increases)…and we’d all be better off.

    1. I can’t agree with you more. There are agencies whose budgets need trimming – or perhaps eliminating, the EPA, DHSS, FDA, CDC, FDA, USDA just to name a few. No surprise about making decisions behind closed doors – those who want to drive home their agenda are always doing that. They did that locally about 20 years ago with “rezoning” a residential area in town as “Heavy Industrial” and while a note was posted in the local paper in terminology difficult to understand, the maps were located in a locked room in the basement of the library. But, after all, the powers to be were “following the rules”.

  4. The “Almond Rule” should not be allowed to stand. It was silently pushed through without letting the public know what was happening. Too much happened behind closed doors, because the USDA knew there would be an outcry against the extremely low risk of raw almonds-especially compared to GMO’s which have not been properly tested, but forced on the public.

  5. Dear Sirs,
    I have nejoyed the benefits of raw food for many decades and with the few remaining, I would like to continue to. Having lived all up and down the coast of California, I had occasion to try a raw and natural almond and the taste is indescribablly delicious. It is known to most peoploe that organically grown food is much superior and health promoting than overly processed food grown on depleted and poisoned soil, lacking minerals.
    I grow some of my own food and would like to grow more, especially when I read stories such as these. It makes me realize that the FDA doesn’t care about my health or anyone’s health. So why are you in business?
    There is a scary trend to use chemicals which were earlier banned and sent to toher countries , which are now coming back to this country in the form of foreign food. Why must we import so much questionable food. Can’t we grow our own and keep some of our money in our own coffers??
    If your goal is really to protect the health and welfare of the US consumer of foods, why not facilitate programs aimed at helping people grow more of their own food, so we have a choice and do not have to be so dependent on tasteless, nutritionless foreign food. That, in itself, is a travesty!
    I have seen the results of the expensive, publicly funded GMO’s and they are NOT improvements over the original plants, but much worse. So why are we being forced to accept them?
    Before the last 200 years or less, EVERYTHING was organic and people somehow survived and thrived. Now many people are sick because of lack of nutrients in our food and junk food, which should be outlawed!
    So please don’t add almonds to the already long list of foods to ruin. Our people can’t take much more poisoning.
    Thank you

    1. Lynn,
      This is an EXCELLENT letter! Thank you for posting it so those of us who get the ANH newsletters are able to read it.
      Now, please actually send it to your representatives and/or copy/paste it directly into the ACTION ALERT. If you want it to get to the people it should be getting to, you need to send it to them.
      Again, absolutely great letter and spot on!

  6. Dear ANH Publishers,
    Thank you for all the great work you do and information you put out into the public domain.
    One question? Why do I have to download the Sharer.php application to post one of your articles on my Facebook timeline?
    I very much believe in the work you are doing and have posted many of your articles on my Facebook time and sent them to friends. However, lately, I’ve been asked to use a third party application that wants the right to “make posts for me on Face Book and in my name”.
    Sorry, but I’m not going to download this type of application. I don’t want an application makeing posts in my name no matter how well intended. Just a bit to big industry for me. How about letting those of us who are not interested in being part of Big Protest help as well.
    Thank you,
    John San Miguel
    Marietta, Georgia

    1. Hi John–Thank you for your comment! If you’d like to share the article without downloading the third-party app, copy and paste the article’s hyperlink into the “create status” box on your FaceBook. Hope this helps!

  7. Just learned the Dairy Association wants to add ASPARTAME to Milk!! Why??? There’s already enough milk sugar naturally in milk. Sneaky way to use another method/chemical to “dumb down” our chldren and society. How can we protest the additive of aspartame to milk???!!

  8. This is another example of the governed being taken over by the government agency where the agency is bought by the special interest group the agency is supposed to be governing. Why do the feds care about this?
    GMO agriculture products are the same. Many of the federal regulations imposed on the growers are the influence of the companies who benefit from imposing the requirements to use the products. The public suffers from having a worse product to buy and consume.

  9. The USDA does not have jurisdiction in the states period. Get your county sheriff behind you and the USDA can’t come on or inspect your facility. If we don’t nullify the USDA in our states, we will continue to be enslaved by them.
    Re. selling almonds across state lines, this is another example of the bastardization of the Commerce clause.

  10. I suspect there are many reasons why they are doing it besides the ones speculated. I suspect one reason may be that they are enforcing cost effective sterilization to minimize the chance of contamination. I suspect this also increases the shelf life? It would be nice if we could choose to take the risk into our own hands though. BUT just like with mad cow disease and every other salmonella outbreak, it’s costly to remediate, and possibly fatal.
    I do agree now that everyone is privy to the issue that there must be a process to looking at other (perhaps better or not) ways to skin this cat.
    There are some good GMO’s. Like ‘too much of a good thing’, idealists, financial reward, and many more reasons, things have taken a new direction. Like in the Jurassic Park movie when Jeff Goldblum says (don’t remember the quote verbatim) that this is what happens when man plays God.
    I am not by any means a supporter of GMO’S, I have my own aquaponics garden that is costly, to minimize the amount of GMO’s and chemicals I ingest. However, I do believe by only portraying one side of the story, it can cause radicals and the blind leading the blind. One must look at what is best for all and in that respect they have not shown they did that. I would like to see their argument and some science advancement in the healthier processing of organic foods. meanwhile buy local from organic farms off the radar and cross your fingers they are clean.

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