Federal Court Vacates Dep’t of Agriculture Guidance; Legislative Rule Requires Notice and Comment


On June 20, 2016, the U.S. District Court for the Northern District of California held, in Center for Environmental Health, et. al. v. Vilsack, that a United States Department of Agriculture (USDA) guidance document, intended to provide guidance with respect to the Organic Foods Act, was a legislative rule, not merely an interpretive statement of agency policy. The Act establishes the standards a product must satisfy to be labeled “organic.” The California Department of Food and Agriculture (CFDA) is certified by the USDA to administer the program in California, and in 2009, the California agency’s inspectors found detectable levels of bifenthrin in three compost products used in organic agricultural operations. Since the substance is not on a “National List” of approved synthetic substances, the USDA rules prohibit this use in compost products. In response to inquiries made by the manufacturer, the USDA issued the guidance document in question which allows the use of this substance under certain conditions.

The plaintiffs’ challenge was not made until nearly five years had passed since its adoption by the USDA, but the Court held that vacatur was still appropriate since the issuance of the document effectively amended the operative rule and withdrew a prior basis for enforcement without notice and comment. The Court concluded that since the guidance document was not issued following the required notice and comment protocol, the  guidance document must be vacated.