Judge: Raw almonds must be treated

McClatchy NewspapersJanuary 19, 2012 

WASHINGTON — A federal judge has again upheld U.S. Agriculture Department rules requiring treatment of raw almonds, in the latest blow to organic farmers in California's San Joaquin Valley.

The mandatory pasteurization or chemical treatments protect consumers from salmonella. The requirement to apply them is also well within the Agriculture Department's power, a federal judge ruled this week.

"The salmonella rule does not exceed the (department's) authority," U.S. District Judge Ellen Segal Huvelle concluded in a decision quietly issued late Wednesday, "and it was promulgated pursuant to the proper procedures."

Huvelle's decision is a victory for the Modesto-based Almond Board of California, which administers the agricultural marketing order by which the industry regulates quality control, research and advertising. The board recommended new safety rules in 2006 following incidents of salmonella contamination, and the Agriculture Department subsequently put them in place.

The 30-page decision, though, is another defeat for Fresno, Calif.-area farmers Nick and Steven Koretoff, Livingston, Calif.-based farmer Cynthia Lashbrook and others who complain the required treatments undermine their ability to sell organic produce for a premium price.

"People should be able to buy them," Lashbrook said in a telephone interview Thursday.

Now, Lashbrook lamented, consumers keen on raw almonds will simply turn to foreign sellers, who are not bound by the Agriculture Department rules.

Raw, organic almonds can be sold for as much as 40 percent more than a conventionally treated almond.

All told, 15 organic almond producers signed on to the legal challenge first filed in 2008. Since then, the legal road has been a bumpy one.

In March 2009, Huvelle dismissed the original complaint, partly on the grounds that the farmers hadn't exhausted their administrative options. The next year, the D.C. Circuit Court of Appeals reversed Huvelle and allowed the almond producers' challenge to proceed.

"Producers can sue to challenge agricultural marketing orders, but consumers cannot," concluded Judge Brett Kavanaugh, an appointee of President George W. Bush.

Huvelle, appointed to the bench by President Bill Clinton, thereupon began wading through an extensive administrative record that spanned thousands of pages, ranging from transcripts to written statements.

"Many national retailers and smaller retailers of raw and organic almonds have ceased purchasing California organic almonds and replaced them with untreated foreign-grown almonds, which customers prefer based on the fact of non-treatment," the organic farmers declared in a legal brief.

The almond board, in turn, declared at the time the new treatment rules were imposed that "while contamination in almonds is not common, the industry determined that aggressive measures were necessary to prevent any other occurrences."

An almond board spokesperson could not be reached to comment Thursday.

California almond producers in 2010-2011 shipped a record 1.6 billion pounds of almonds, with the crop valued at $2.8 billion. Production has grown even more since then.

Huvelle this week ruled on summary judgment, without having the case go to a full-blown trial. She concluded, among other points, that the quality control authority granted agricultural marketing orders encompasses anti-salmonella treatments.

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Almond Board of California

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