What many consumers and retailers find most repugnant about the mandatory almond pasteurization law is that despite the mandated toxic fumigation or steam treatment, almonds are still labeled in the marketplace as "raw."

Oddly, imports into the U.S. of foreign nuts are exempt from the rule, as are exports shipped from the U.S. to other countries.

Wednesday, March 11, 2009--The dismissal, on technical grounds, by a federal court judge on Monday of a lawsuit challenging the USDA’s raw almond pasteurization mandate will likely not end the controversy.

“The court’s decision sidestepped the merits and substance of the lawsuit,” said Will Fantle of The Cornucopia Institute, a Wisconsin-based family farm research group and organizer of the almond lawsuit.

The USDA’s lack of legal authority to enact the controversial raw almond regulation and its fumbling of the rule’s implementation were among major substantive claims detailed in the lawsuit—none of which the court has yet to rule on. Eighteen California almond farmers and wholesale nut handlers had filed the suit against the USDA last September.

“Instead,” said Fantle, “the judge decided on procedural grounds that almond farmers, just like consumers and retailers, have no right to have their concerns about the illegal nature of the almond treatment scheme heard in court.”

Implemented in September 2007, the almond pasteurization rule requires treatment with a toxic gas (propylene oxide) or steam heat for all raw almonds produced by American growers and sold commercially to domestic consumers. Oddly, imports into the U.S. of foreign nuts are exempt from the rule, as are exports shipped from the U.S. to other countries. These imported nuts, generally of lesser quality, are now destroying the livelihood of organic, family-scale almond farmers in California.

Almond farmers and handlers engaged in the sale of raw and/or organic almonds have watched their operations disintegrate as a result of the treatment mandate. Consumers and retailers have turned to foreign suppliers, taking advantage of the regulatory loophole, for untreated raw and organic almonds.

“Cornucopia and our attorneys are carefully exploring legal options, including appeals and other strategies,” Fantle said. “We are not abandoning the fight to return to grocer’s shelves an American-grown, highly nutritional raw food that has been eaten with confidence and enjoyment for decades. We believe the fundamental points of our lawsuit are valid and need to be tested.”

"This issue clearly illustrates how the Bush administration, at the USDA, sold out the interests of organic consumers and farmers in deference to those of corporate agribusiness, said Mark A. Kastel, who is Cornucopia's Senior Farm Policy Analyst.

When the almond pasteurization mandate was first proposed, the USDA notified 200 industry representatives who submitted, nationally, a total of only 18 formal responses during the legally mandated public comment period.

When The Cornucopia Institute alerted almond growers, consumers, and retailers, well over 10,000 comments came into the USDA, asking the department to re-open comments and take their concerns into consideration.What many consumers and retailers found most repugnant was that despite the mandated fumigation or steam treatment, almonds would still be labeled in the marketplace as "raw."

Bush administration officials, who first entertained the idea of a "compromise" whereby organic and other high-quality smaller growers could continue to sell truly raw almonds, including a notice telling consumers that they had not been pasteurized, later informed Cornucopia that they had rejected the alternative proposal and decided to "side with the industry."

In addition to their court case, The Cornucopia Institute last month launched a campaign asking President Obama and the newly appointed USDA secretary, Tom Vilsack, to clean house at the USDA's National Organic Program and appoint officials who will promote a fair shake for family-scale farmers and consumers who are demanding authentic food in the marketplace.

Interested members of the organic community can make their voice heard by sending Mr. Obama and Secretary Vilsack a proxy-letter, which is available on the Cornucopia Institute's web site here.