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UNIVERSITY OF TOLDEO LAW REVIEW
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Vol. 26 |
of the statute; and (3) pass scrutiny under all seven evaluative
criteria under section 6518(m).77
Had the drafters been aware of the seriousness of the mammalian toxicity, the
mode of action and the reactivity of the multiple chemical sensitivity population for
these materials, they would not have passed this burden to the NOSB. Instead, they would
have prohibited botanical pesticides outright just as they did sulfites, nitrates,
nitrites78 and arsenic and lead salts.79
This author was asked to be a technical advisor on two botanicals:
tobacco dust and quassia. My review for tobacco dust uncovered literature demonstrating
violations of all seven criteria in section 6518(m). Yet, the NOSB, in the face of
this evidence, failed to place this material on the list of prohibited materials at its
October 1994 meeting.80 Quassia was prohibited only because
it had no EPA registration although it also failed the seven criteria of section 6518(m).
Despite its failure to meet the criteria, however, only section 6517(d)(3) prevented this
toxic material’s widespread use in organic production and/or handling.81
If the consistency paradigm of the OFPA is to be uniformly
administered, then section 6517(d)(3) presents strong evidence that any doubt or data gaps
for a given material should mandate exclusion from permitted uses of that material.82 In other words, a rule of common sense and prudence should
prevail in organic standards: "If in doubt, throw it out."
- NOSB National List Voting Protocol
The OFPA 83 defines a decisive vote for
the NOSB to be two-thirds of the votes cast at a meeting. Assuming that an abstention is
not a cast vote, this would be two-thirds of the non-abstaining members present. This
detail becomes very significant, yet problematic, in voting on materials prohibition of
permission for the National List. The reason stems from the fact that failure to prohibit
a natural is to permit a natural; as failure to permit a synthetic is to prohibit a
synthetic. If a vote to permit a synthetic material does not result in two-thirds of the
cast votes to permit, the material is automatically prohibited. Any number of votes
greater than one-third of the voting
77. 7 U.S.C. § 6518(m)
(Supp. V 1993).
78. 7 U.S.C. § 6510(a)(3) (Supp. V 1993).
79. 7 U.S.C. § 6508(c)(1) (Supp. V 1993).
80. This technical advisory review was done by the
author and should be available for perusal under the Freedom of Information Act, Pub. L.
No. 89-487, 80 Stat. 250 (1966) (codified at 5 U.S.C. § 552 (1988 & Supp. V 1993)).
81. See 7 U.S.C. § 6517(d)(3) (Supp. V
1993). This section provides: "In no instance shall the National List include any
substance, the presence of which in food has been prohibited by Federal regulatory
action." Id.
82. Id.
83. 7 U.S.C. § 6517(l) (Supp. V 1993).
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