A current lawsuit before the U.S. District Court for the Northern District of California has the potential to become an example of good intentions with unintended consequences. With the aim of ensuring the compost used on organic farms is completely free of disallowed synthetic substances, the plaintiffs seek to make void certain guidance documents under the National Organic Program (NOP) which currently allow for de minimis levels of chemical residues.

Without these guidance documents, the regulations would not allow any pesticide residue in organic farmers' compost whatsoever.

"If I'm an organic producer and my next-door neighbor is a conventional producer, there might be residues drifting in the air on occasion that are in miniscule amounts," says Dennis Nuxoll, vice president of Federal Government affairs at Western Growers.

The industry group was recently granted Amicus Status in the case brought by the Center for Environmental Health, the Center for Food Safety, and Beyond Pesticides.

"If you don't have guidance documents that tell you the compost standards, what the thresholds are, you then are left with the baseline regulations, and the way the baseline regulations reads is very black and white – you cannot have any synthetic residue in the compost.

"If they [the plaintiffs] are successful and if they void the guidance, we feel there could potentially be some market chaos that results from that."

The kicker is that there are currently no clear procedures in place as to how an organic grower would need to test for synthetic substances in their compost, or how frequently.

"We would be left with no standards in place in the United States to say you had compost that met the organic standard.

"We would then be in the situation as a consequence where you could have operations that would not have certainty that their compost is organic, and hence that their product is organic.

"What we’re suggesting to the judge is the remedy you should have in place if the she determines the government’s at fault."

Nuxoll says this would mean allowing a transition to a new system so the sector can adapt without causing "market uproar".

He adds the uncertainty would extend beyond U.S. borders as well, given there are growers all over the world who ship organic produce to the U.S. with the help of third-party certifiers.

"There are equivalence agreements, and others like with India whereby you can export from India to the United States under organic standards. There are third party certifiers in India that work with the Indian government to comply with U.S. standards.

"They would be put into some jeopardy, because they would not know what the U.S. standard is to which they are certifying Indian sourced product."

He says how overseas countries with equivalence agreements would be affected by a removal of the guidance documents depends on the strictness of their regimes.

"For example, Canada has a standard they don’t allow any residue either but they have guidance documents and an explanation as to what that really means.

"In Canada, if you do composting the compost process is 180-200 days – at the end of 180 days most synthetic compounds will have broken down naturally. They have a regime in place that is in fact detailed and gives some context."

Given the national and international repercussions this case could entail, not just in terms of uncertainty but the cost of testing, Nuxoll is hopeful the court will take Western Growers' concerns into consideration.

The case was originally scheduled to be heard last week, but has since been postponed until May 26.

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