Almond Growers and Handlers File Federal Lawsuit Seeking to End 'Adulteration' of Raw Nuts

WASHINGTON - A group of fifteen American
almond growers and wholesale nut handlers filed a lawsuit in the Washington,
D.C. federal court on Tuesday, September 9 seeking to repeal a controversial
USDA-mandated treatment program for California-grown raw almonds. 

The almond farmers and handlers contend that their
businesses have been seriously damaged and their futures jeopardized by a
requirement that raw almonds be treated with propylene oxide (a toxic fumigant
recognized as a carcinogen by the EPA) or steam-heated before they can be sold
to American consumers.  Foreign-grown almonds are exempt from the
treatment scheme and are rapidly displacing raw domestic nuts in the
marketplace.

Tens of thousands of angry consumers have contacted the USDA
to protest the compulsory almond treatment since the agency's new
regulation went into effect one year ago.  Some have expressed outrage
that even though the nuts have been processed with a fumigant, or heat, they
will still be labeled as "raw."

"The USDA's raw almond treatment mandate has
been economically devastating to many family-scale and organic almond farmers
in California," said Will Fantle, the research director for the
Wisconsin-based Cornucopia Institute.  Cornucopia has been working with
almond farmers and handlers to address the negative impacts of the USDA rule,
including the loss of markets to foreign nuts. 

The USDA, in consultation with the Almond Board of
California, invoked its treatment plan on September 1, 2007 alleging that it
was a necessary food safety requirement.  Salmonella-tainted almonds twice
this decade caused outbreaks of food related illnesses.  USDA
investigators were never able to determine how salmonella bacteria somehow
contaminated the raw almonds that caused the food illnesses but they were able
to trace back one of the contaminations, in part, to the country's largest
"factory farm," growing almonds and pistachios on over 9000 acres.

Instead of insisting that giant growers reduce risky
practices, the USDA invoked a rule that requires the gassing or steam-heating
of California raw almonds in a way that many consumers have found
unacceptable. 

"For those of us who are interested in eating fresh and
wholesome food the USDA's plan, to protect the largest corporate agribusinesses
against liability, amounts to the adulteration of our food supply," said
Jill Richardson, a consumer activist and blogger at: www.lavidalocavore.org.

"This ruling is a financial disaster and has closed a
major customer group that we have built up over the years," said Dan
Hyman, an almond grower and owner of D&S Ranches in Selma, CA.  His
almond business relies on direct sales to consumers over the internet. 
Hyman notes that his customers were never consulted by the USDA or the Almond
Board before they were denied "a healthy whole natural raw food
that they have eaten with confidence, enjoyment and benefit for decades."

The lawsuit contends that the USDA exceeded its authority,
which is narrowly limited to regulating quality concerns in almonds such as
dirt, appearance and mold.  And even if the USDA sought to regulate bacterial
contamination, the questionable expansion of its authority demanded a full
evidentiary hearing and a producer referendum, to garner public input -
neither of which were undertaken by the USDA.

"The fact that almond growers were not permitted to
fully participate in developing and approving this rule undermines its
legitimacy," said Ryan Miltner, the attorney representing the almond
growers.  "Rather than raising the level of income for farmers
and providing handlers with orderly marketing conditions," added
Miltner, "this particular regulation creates classes of economic winners
and losers.  That type of discriminatory economic segregation is anathema
to the intended purpose of the federal marketing order system. "

Retailers of raw almonds have also been expressing their
unhappiness, based on feedback from their customers, with the raw almond
treatment rule.  "We've been distributing
almonds grown by family farmers in California for over 30 years
and we regard them as the common heritage of the American people," said
Dr. Jesse Schwartz, President of Living Tree Community Foods in Berkeley,
CA.  "We can think of no reply more fitting than to affirm our faith
that ultimately the wisdom and good sense of the American people will
prevail in this lawsuit."

Barth Anderson, Research & Development Coordinator for
The Wedge, a Minneapolis-based grocery cooperative, noted that their mission
has always been to support family farmers.  "We weren't surprised
when Wedge shoppers and members wrote nearly 500 individual letters expressing
disapproval of the USDA's mandatory fumigation law for domestic almonds,"
Anderson said.  "Our members especially did not like the idea that
fumigated almonds could be called ‘raw.'" 

According to the USDA, there is no requirement for retailers
to alert consumers to the toxic, propylene oxide fumigation or steam treatment
applied to raw almonds from California. 

"This rule is killing the California Organic Almond
business," said Steve Koretoff, a plaintiff in the lawsuit and owner of
Purity Organics located in Kerman, CA.  "Because foreign almonds do
not have to be pasteurized their price is going up while our price is going
down because of the rule.  It makes no sense." Koretoff
added.  

 Two groups of consumers that have been particularly
vocal in their opposition to the almond treatment rule are raw food enthusiasts
and vegans.  These consumers may obtain as much as 30% of their daily
protein intake from raw almonds, after grinding them for flour and other uses. 
Studies exploring nutritional impacts following fumigant and steam treatment
have yet to be publicly released.  A Cornucopia Institute freedom of
information request for the documents is awaiting a response from the USDA.

"We raw vegans believe raw
foods, from non-animal sources, contains valuable nutrients - some not
yet well-understood by scientists," stated Joan Levin, a retired attorney
living in Chicago.  "These nutrients can be destroyed by heat,
radiation and toxic chemicals.  We support the continued availability of
fresh produce free of industrial age tampering," explained Levin.

Cornucopia's Fantle noted
that the Washington, D.C. federal district court has already assigned the
almond lawsuit a case number, beginning its move through the judicial
system.  "We believe this is a strong legal case and hope for a
favorable decision in time to protect this year's almond harvest,"
Fantle said. 

MORE: 

Additional background information on the almond treatment issue,
including a copy of the legal complaint, can be found on The Cornucopia
Institute's web page at www.cornucopia.org. The lawsuit, filed in
federal district court in Washington D.C., has been assigned case number 1:08-CV-01558.

PCC Natural Markets, in Seattle, WA is the nation's
oldest and largest cooperative grocer.  Goldie Caughlan, is the
co-op's Nutrition Education Manager as well as a board member of The
Cornucopia Institute.  According to Caughlan:  "After the
USDA's treatment mandate became effective, we added imported
organically grown and conventional almonds.  The labels and
signage we created accurately informs customers these are truly
"raw," and explain the changed requirements for U.S.
producers.  We continue to sell some U.S. produced almonds, but
this has necessitated investigating growers to ascertain that we sell
only steam-pasteurized almonds, not those fumigated by chemicals. 
These added efforts are time consuming and create added expense for our
company."

"This is yet another example of how government, under
the guise of ‘public health,' is interfering with an individual's
fundamental right to consume the foods of their choice," noted attorney David
G. Cox of Lane, Alton & Horst LLC in Columbus, OH and a legal advisor to
The Cornucopia Institute.  "The government's police power does not
authorize the USDA to choose for the individual what foods should be in the
marketplace."

Mitch Wallis, a San Diego attorney and another member of the
Cornucopia legal team, added that "in one fell swoop, the USDA and its
agribusiness-dominated California Almond Board, have taken away all consumer
access to a truly 'raw' almond.  Almonds are, especially in California,
perhaps the ‘king of nuts.'  If they can get away with
destroying the almond, what does this portend for the future of all
nuts and ultimately for all raw and natural foods?"

"It goes against all reason for the USDA to
require domestic almonds to be pasteurized while
allowing unpasteurized almonds to be imported from abroad," observed
Eli Penberthy, a Seattle, WA-based food and farming analyst with The Cornucopia
Institute.  "Small-scale and organic farmers in California have
lost sales to retailers and consumers who are instead choosing to buy
truly raw almonds from Italy and Spain."  The shift to foreign
sources is ironic since there is virtual unanimity in the retail sector that
foreign nuts are of lower quality in terms of flavor and appearance.

The Cornucopia Institute has been articulating the concerns
of family-scale farmers, producing organic, conventional and local food, about
the potential fallout from the industrialization of our food supply. 
Foodborne illnesses, and the contamination of food from large industrial
farming operations, are now motivating regulators to look at
"technological fixes" rather than addressing the root cause of the
problems - the widespread fecal contamination of the nation's food
supply.

"It is ironic that consumers, in increasing numbers,
are voting in the marketplace for a higher quality of food from organic and
local farmers - producers they trust," stated The Cornucopia
Institute 's Fantle.  "The very growers that stand to lose are the safest
and highest quality producers of food in the United States.  We will not
allow them to be placed at a competitive disadvantage."