October 23, 2002 -- Arthur Harvey, of Hartford, Maine, acting as his own attorney, filed a civil lawsuit in U.S. District Court for the District of Maine against Secretary Veneman. The suit consisted of 9 counts challenging the National Organic Program (NOP) Final Rule as not in conformity with the Organic Foods Production Act of 1990 (OFPA). The case number was Civil No. 02-216-P-H.
Assistant U.S. Attorney Halsey B. Frank, Portland, Maine, was assigned to represent Secretary Veneman. In the USDA Headquarters, Keith Jones has worked with Frank Martin, Esq., of the Office of General Counsel, to assist Mr. Frank in preparation of the case.
In Count 3, the single most significant count, Mr. Harvey asked the Court to eliminate provisions of the National List that “allow synthetics to be added during processing of organic food.” Specifically, these provisions are the list of synthetics allowed in processed products under 7 CFR § 205.600(b), and the language in § 205.600(b) allowing a synthetic as a processing aid or adjuvant.
October 10, 2003 – After Mr. Harvey and Secretary Veneman had each submitted motions for summary judgment (“cross motions”), U.S. Magistrate Judge Margaret J. Kravchuk issued a 41-page Recommended Decision on Cross Motions for Summary Judgment. Her Recommended Decision was in favor of Secretary Veneman on Counts 1 through 8, and for Mr. Harvey on Count 9.
December 8, 2003 – Mr. Harvey filed a motion to “narrow the scope” of the materials he was challenging in Count 3. Of the synthetic materials listed under § 205.600(b), he dropped his challenge to the following:
· Ferrous sulfate [§ 205.605(b)(11)] and nutrient vitamins and minerals [§ 205.605(b)(19) ] because they are required under various food regulations.
· Chlorine materials [§ 205.605(b)(9)] and phosphoric acid [§ 205.605(b)(22)], because they are not added ingredients, but materials used for cleaning food contact surfaces and equipment.
· All materials listed under § 205.605(b) that may be used only in processed products labeled “made with…” magnesium carbonate [§ 205.605 (b)(16)}, magnesium stearate [(b) (18)], potassium iodide [(b)(28)], potassium phosphate [(b)(29)] and sulfur dioxide [(b) (34)].] He dropped these materials from his suit because 7 USC § 6510(a)(1) would bar synthetic ingredients only in processed foods labeled as “organic.”
January 7, 2004 – U.S. District Judge D. Brock Hornby, in a 3-page order, granted summary judgment for Secretary Veneman and against Mr. Harvey on all 9 counts. He explained in his order why he was rejecting the Magistrate Judge’s Recommended Decision with respect to Count 9.
In addition, Judge Hornby granted Mr. Harvey’s motion to eliminate the selected materials in § 205.605(b) from the scope of his Count 3 challenge. With these materials no longer under challenge in the lawsuit, there are still 30 materials listed under § 205.605(b) that would be covered by Count 3.
March 8, 2004 – Mr. Harvey filed notice of appeal with First Circuit Court of Appeals. Now, instead of Mr. Harvey acting as his own attorney, a Washington, D.C., attorney, Paula Dinerstein, Esq., represented him.
June 7, 2004 – Counsel for Mr. Harvey filed 59-page appellant’s brief.
June 15, 2004 – Amicus curiae brief, 30 pages, filed by Susan E. Stokes and Jill E. Kreuger, Esqs., of Farmers’ Legal Action Group, Inc., and Joseph Mendelson, III, Esq., of Center for Food Safety, on behalf of three organizations:
- Rural Advancement Foundation International—USA (RAFI)
- Center for Food Safety
- Beyond Pesticides.
June 17, 2004 – Amicus curiae brief, 30 pages, filed by James Handley, Esq., of Washington, D.C., on behalf of six organizations and three individuals: