This action stems from USDA's Administrator of the Agricultural Marketing Service, A.J. Yates, overruling an organic certification decision made by Massachusetts Independent Certification, Inc. (MICI) in October 2002. MICI had turned down an application for organic certification from an egg producer, The Country Hen, because it found that the applicant failed to provide its birds with access to the outdoors, as required by organic regulations. The day after MICI issued its formal decision, Administrator Yates directed MICI to issue an organic certificate. Possession of an organic certificate entitles producers and food processors to use the USDA Organic seal on food containing 95% or more organic ingredients and produced according to the organic system plan. Packaged foods must also identify the third-party certifying agent on the label.

In February 2003, MICI filed an administrative appeal within USDA challenging the Administrator's authority to compel a certifying agent to issue an organic certificate and the merits of the Administrator’s certification decision. However, USDA repeatedly denied MICI the right to any administrative appeal. For over three years, MICI has striven to vindicate its right to appeal under both the Organic Foods Production Act and the United States Constitution.

In September 2005, MICI filed an action in federal court in Massachusetts alleging that the USDA must provide certifying agents the right to appeal when USDA overturns their certification decisions. MICI argues that USDA’s appeal regulations are inconsistent with the Organic Foods Production Act, passed in 1990, which requires the Secretary of Agriculture to establish an appeal process that allows any person to appeal an action by USDA that is adverse to that person or that violates the requirements of the organic certification program. MICI also alleged a violation of its constitutional rights of due process of law, freedom of speech, and freedom of association.

On March 30, 2007, the district court ruled against MICI. The decision can be found at 486 F.Supp.2d 105 (D. Mass. 2007).

Back to Top

Federal Court Documents

MICI Complaint (Sept. 21, 2005)

MICI First Amended Complaint (Dec. 14, 2005)

MICI Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss (Dec. 30, 2005)

MICI Sur-Reply (Feb. 27, 2006)

Back to Top

Administrative Proceedings Documents

MICI Complaint (Feb. 25, 2003)

MICI Complainant's Opposition to Respondent's Motion to Dismiss (Apr. 2, 2003)

MICI Complainant's Motion to Strike and Motion to File Surreply (May 23, 2003)

USDA Order Dismissing Complaint (Nov. 4, 2003)

MICI Appeal Brief and Appeal Petition (Dec. 11, 2003)

MICI Reply Brief (Feb. 17, 2004)

USDA Order Dismissing Petitioner's Appeal (Apr. 27, 2004)

Back to Top

Related Cases

Harvey v. Veneman Motion and Brief of Amici Curiae Rural Advancement Foundation International-USA, Center for Food Safety, and Beyond Pesticides in Support of Plaintiff/Appellant, U.S. Court of Appeals for the First Circuit (June 14, 2004)

Press Releases

FLAG to Represent MICI in Defending Appeal Rights of Certifying Agents in National Organic Program (6/26/06)

Organic Certifier Challenges USDA Interference in Decision-Making (9/27/05)

Organic Appeal Submitted to USDA's Judicial Officer for Decision (4/2/04)

FLAG Files Appeal in Organic Case (12/11/03)

Administrative Law Judge Denies Organic Certifiers Appeal Rights: Further Challenges Likely (11/13/03)

Organic Certifier Challenges USDA Interference (2/25/03)

Back to Top

Media Advisory
June 26, 2006

For More Information:
Jill Krueger, Senior Staff Attorney, Farmers’ Legal Action Group, Inc., 303-809-4717 (June 28 ONLY), 651-223-5400 (anytime)
Ed McGlew, Massachusetts Independent Certification, Inc., 413-247-9264
Judith Gillan, Massachusetts Independent Certification, Inc., 413-323-6821

FLAG to Represent MICI in Defending Appeal Rights of Certifying Agents in National Organic Program

Who:Massachusetts Independent Certification, Inc. v. Johanns (USDA)
What: Hearing on role of certifying agents in National Organic Program
Where: United States District Court for the District of Massachusetts; Courtroom 2; Donohue Federal Building; 595 Main Street; Worcester, MA
When: 2:00 p.m., Wednesday, June 28, 2006

A hearing on the appeal rights of third-party certifying agents within the National Organic Program will be held on June 28 in the United States District Court for the District of Massachusetts in Worcester, Massachusetts. The proceedings will be held at the Donohue Federal Building ( 595 Main Street) and begin at 2:00 p.m.

Massachusetts Independent Certification, Inc. (MICI) sued U.S. Secretary of Agriculture Mike Johanns in federal court in September 2005. MICI is arguing USDA’s interpretation of the appeal rights of certifying agents within the National Organic Program violates both the Organic Foods Production Act and the U.S. Constitution. USDA is seeking to dismiss the lawsuit by arguing that MICI lacks the right to bring this case and that USDA’s appeal regulations are lawful.

This case could have far reaching implications for the integrity of the “USDA organic” label.

MICI, based in Winchendon, Massachusetts, is an accredited certifying agent in the National Organic Program. MICI’s organic certification program is Baystate Organic Certifiers. For over three years, MICI has striven to vindicate its right to appeal USDA’s interference in its organic certification decisions and to compel USDA to recognize the important role of private third-party certifying agents in the National Organic Program.

This action originally arose after MICI denied organic certification to an egg producer because MICI found that the chickens did not have freedom of movement and access to the outdoors, as required by organic regulations. The day after MICI issued its formal denial, USDA directed MICI to issue an organic certificate. USDA has since refused MICI any opportunity to challenge that decision.

Representatives of MICI and their attorneys from the Farmers' Legal Action Group will be available to speak with reporters following the hearing. For more information and background on the case, or to schedule an interview with the certifying agents who are bringing this case, please contact the persons above.

Back to Top

News Release
September 27, 2005

For More Information:
Judith Gillan, Massachusetts Independent Certification Inc., 413-323-4531
Jill Krueger, Farmers’ Legal Action Group, Inc., 651-223-5400

Organic Certifier Challenges USDA Interference in Decision-Making

WORCESTER, MASSACHUSETTS — A Massachusetts organization responsible for certifying organic farmers has charged USDA with undermining the “USDA Organic” program and lowering established standards for organic certification. Massachusetts Independent Certification, Inc. (MICI) filed a complaint in federal district court today. In the complaint, MICI alleged that USDA wrongly interfered in its decision not to certify an egg producer. MICI denied organic certification to the operation because it found that the chickens did not have freedom of movement and access to the outdoors, as required by organic regulations.

On October 25, 2002—the day after MICI had denied the organic certification—USDA overruled MICI’s decision and directed it to certify the egg producer.

Judith Gillan, a Board member of MICI, said, “The USDA did not respond to us when we contacted them directly and then it refused to hear our appeal, so filing a formal court complaint seems to be our only option. We owe it to the organic community and consumers to make sure food that bears the USDA Organic seal—and our program name—is consistent with their expectations and the intent of the organic program.”

Jill Krueger, staff attorney with Farmers’ Legal Action Group, (FLAG) said, “MICI sought for over a year to have its concerns heard by USDA. But rather than letting the organic certifier into the appeals process as a valued partner in the USDA Organic program, the agency stonewalled.” FLAG represents MICI in the lawsuit. Douglas Wilkins of Anderson, Kreiger, LLP in Cambridge, Massachusetts is acting as local counsel.

Krueger added, “We hope that the federal courts will recognize the important interests of independent certifiers and consumers and honor the integrity of the USDA Organic program.”

Under Federal Rules of Civil Procedure, USDA has 60 days to respond to the complaint.

MICI, based in Winchendon, Massachusetts, is an accredited certifying agent in the National Organic Program.

View MICI Complaint (PDF)

Back to Top

Organic Appeal Submitted to USDA's Judicial Officer for Decision

On behalf of its client, Massachusetts Independent Certification (MICI), FLAG has appealed a ruling of a USDA Administrative Law Judge that found that accredited certifying agents have no right to appeal when USDA overturns their decisions in the National Organic Program. MICI argued in its appeal to the USDA Judicial Officer that the program regulations were inconsistent with the Organic Foods Production Act, passed in 1990, which requires the Secretary of Agriculture to establish an appeal process that would allow any person to appeal an action by USDA that violates the requirements of the organic certification program. MICI also alleged a violation of its constitutional rights of due process of law, freedom of speech, and freedom of association. MIC I argued that a USDA official unlawfully interfered with its enforcement of the requirement that laying hens must be given access to the outdoors in order for the eggs to be labeled as organic.

USDA's Agricultural Marketing Service filed a brief opposing the certifier's right to appeal. FLAG filed a brief on MICI's behalf responding to new arguments raised in the government brief. Both parties await a decision from the Judicial Officer. If the Judicial Officer decides in MICI's favor, USDA will be bound by the decision. If the Judicial Officer decides against MICI, MICI will have the right to seek review of the decision in federal court.

View Respondents' Opposition and Brief in support Thereof, to Petitioner's Appeal Petition (PDF format)

View MICI Reply Brief (PDF format)

Back to Top

FLAG Files Appeal in Organic Case

On behalf of its client, Massachusetts Independent Certification (MICI), FLAG has appealed a ruling of a USDA Administrative Law Judge that found that accredited certifying agents have no right to appeal when USDA overturns their decisions in the National Organic Program. MICI argued in its appeal to the USDA Judicial Officer that the program regulations were inconsistent with the Organic Foods Production Act, passed in 1990, which requires the Secretary of Agriculture to establish an appeal process that would allow any person to appeal an action by USDA that violates the requirements of the organic certification program. MICI also alleged a violation of its constitutional rights of due process of law, freedom of speech, and freedom of association. MIC I argued that a USDA official unlawfully interfered with its enforcement of the requirement that laying hens must be given access to the outdoors in order for the eggs to be labeled as organic. USDA's Agricultural Marketing Service is expected to respond to the appeal in the near future.

View the Appeal Petition (PDF format)
View the Appeal Brief (PDF format)

Back to Top

News Release
November 13, 2003

For more information:
Jill Krueger, FLAG, 651-223-5400

USDA Decision Jeopardizes Organic Standards
USDA Attempts to Quell Dispute Over Organic Eggs

WASHINGTON, DC — In a decision that may have far-reaching implications for the fledgling National Organic Program, an administrative judge within USDA ruled that accredited certifying agents have no right to appeal when USDA overturns their decisions. The ruling dismissed an appeal filed by Massachusetts Independent Certification, Inc. (MICI). MICI had argued in its appeal that a USDA official unlawfully interfered with its enforcement of the requirement that laying hens must be given access to the outdoors in order for the eggs to be labeled as organic. Under the Organic Foods Production Act, passed in 1990, the Secretary of Agriculture was required to establish an appeal process that would allow any person to appeal an action by USDA that violates the requirements of the organic certification program.

The dispute arose when MICI denied an organic certificate to The Country Hen, an egg producer based in Massachusetts, because it determined that the chickens did not have access to the outdoors, as required by organic regulations. The day after MICI issued its formal denial, the Administrator overturned its decision. "No one from USDA ever reviewed our files, talked to our Certification Committee, or even asked us a single question concerning the denial," noted Don Franczyk, MICI's Certification Administrator.

Accredited certifying agents are private entities or state governments that have been found by USDA to have sufficient expertise to determine whether farmers and food processors who apply to participate in the National Organic Program meet the organic standards. Accredited certifying agents have the legal authority to grant organic certificates, and USDA does not.

Judith Gillan, an MICI Board member, points out that the issue is much larger than the concerns of one certifying agent. "If USDA can overturn a certifying agent's decision without even holding a hearing, how can consumers be confident that food bearing the USDA Organic seal was produced in the manner they expect?" Gillan adds, "For decades, farmers and consumers have counted on certifying agents to uphold strict organic standards. We can't do our job if we are denied the right to appeal USDA decisions. It's that simple."

Jill Krueger, an attorney with Farmers' Legal Action Group (FLAG), observed that, "USDA usurped the role of the certifying agent, undermined the organic standards, and failed to provide due process. It is unlikely that the organic community will accept this state of affairs, any more than it accepted last year's attack on the organic standards." An exemption that would have allowed poultry producers to feed their chickens non-organic feed was overturned by Congress in less than two months earlier this year due to intense pressure from the organic community. FLAG represents MICI in its appeal.

Gillan said, "The Organic Foods Production Act recognized that there was already considerable expertise in organic farming in the private sector. That is why Congress included private certifiers in the National Organic Program. All we ask is that we be allowed to play this important independent role. Maintaining the independence of certifying agents is crucial to the preservation of organic integrity." MICI expects to make a decision about its next step in the legal process in the near future.

Order Dismissing "Complaint" (Nov. 4, 2003)

Complainant's Motion to Strike and Motion to File Surreply (May 23, 2003)

Complainant's Opposition to Respondent's Motion to Dismiss (Apr. 2, 2003)

Complaint (Feb. 25, 2003)

Back to Top

News Release
February 26, 2003

For more information:
Judith Gillan, Massachusetts Independent Certification Inc., 413-323-4531
Jill Krueger, Farmers' Legal Action Group, Inc., 651-223-5400

Organic Certifier Challenges USDA Interference

WASHINGTON, DC - A Massachusetts organization responsible for certifying organic farmers has charged USDA with undermining the new organic program and lowering established standards for organic certification. On Wednesday, Massachusetts Independent Certification, Inc. (MICI) filed a complaint to be heard by an administrative law judge alleging that USDA wrongly interfered in its decision not to certify a commercial egg producer. MICI denied organic certification to the operation because, contrary to the organic regulations that went into effect on October 21, 2002, the chickens did not have access to the outdoors.

On October 25, 2002-the day after MICI denied the organic certification-USDA overruled MICI's decision and directed it to certify the commercial egg-laying operation. Judith Gillan, an MICI Board member, said, "We communicated our concerns directly to USDA but have had no response. Filing a formal complaint seems to be our only option. We owe it to the organic community and consumers to make sure food that bears the USDA Organic seal-and our program name-is consistent with their expectations and the intent of the organic regulations."

The complaint represents one of the first legal challenges to USDA's implementation of the new organic standards. "The outcome of this legal challenge will help determine whether the organic program will present consumers with a real choice in how their food is produced, or whether USDA will bow to pressure to dilute the standards," noted Michael Sligh, Policy Director for Rural Advancement Foundation International USA (RAFI-USA).

Jill Krueger, staff attorney with Farmers' Legal Action Group, (FLAG) said, "We hope that the administrative law judge will recognize the important interests of independent certifiers and consumers and honor the integrity of the organic regulations." FLAG represents MICI in the legal proceeding.

MICI is an accredited certifying agent in the National Organic Program based in Winchendon, Massachusetts.

FLAG is a nonprofit law center in St. Paul, Minnesota dedicated to providing legal services to family farmers and their rural communities in order to help keep family farmers on the land.

Back to Top