AMS Determines that the Organic Food Production Act does not Authorize AMS to Regulate Animal Welfare beyond Health Care Practices

As discussed previously, the Organic Livestock and Poultry Practices (OLPP) rule has a somewhat tortured history. The rule was finalized at the end of the Obama administration. Since then, USDA’s Agricultural Marketing Service (AMS) has delayed the effective date of the rule several times, most recently on November 14, 2017. At that time, AMS expressed uncertainty about its authority under the Organic Food Production Act (OFPA) to issue animal welfare regulations. AMS also expressed concern about the cost benefit analysis for the final rule.

Therefore, it came as no surprise when, on December 18, 2017, AMS issued a proposal to withdraw the OLPP rule because AMS has concluded that it lacks the requisite statutory authority to issue an animal welfare rule for organic livestock and poultry farmers.

AMS previously had pointed to its authority under 7 U.S.C § 6509(g), which directs AMS “to develop detailed regulations . . . to guide the implementation of the standards for livestock products provided under this section,” as the basis for the OLPP rule. However, upon further consideration, AMS now has concluded that this provision relates to regulations that concern only “those aspects of animal care that are similar to those described in section 6509(d)(1) and that are shown to be necessary to meet the congressional objectives specified in 7 U.S.C. 6501,” i.e., health care-related regulations.

AMS also expresses concern that the “OLPP final rule’s prescriptive codification of current industry practices in the dynamic, evolving marketplace could have the unintended consequence of preventing or stunting future market-based innovation in response to rapidly evolving social and producer norms.” Last but not least, the Preliminary Regulatory Impact Analysis (using the corrected data and assumptions) shows little to no economic justification for the OLPP final rule.

AMS is accepting comments on the proposal to withdraw the final rule through January 17, 2018.

Meanwhile, the litigation initiated by the Organic Trade Association challenging AMS’s repeated delays of the effective date as violations of the Administrative Procedures Act and the OFPA remains pending. Plaintiffs had filed their amended complaint on December 8, 2017. It is too soon to know how Plaintiffs will respond to the proposed withdrawal of the OLPP, but we will continue to monitor developments.