Analysts at Cornucopia strongly refute the contention that the Aurora matter would leave all organic marketers open to tort complaints by consumers. "Obviously, there is strong evidence for these consumers to believe they were defrauded by Aurora and the supermarket chains, Kastel said. "This is an exceptional situation not indicative of the industry as a whole.
Kastel cited the fact that Cornucopia sent certified letters to every one of Aurora's retailer customers informing them that the reputation of their store's label was at risk and encouraging them to take action. Only two marketers, the Publix supermarket chain in Florida and United Natural Foods International, the largest organic food distributor in the country, did the due diligence necessary and switched suppliers.
"The organic certification documents alone are not enough if evidence is brought to a marketer's attention that some kind of improprieties are taking place, Fantle added. "There is always the possibility that collusion or incompetence has taken place on the part of the supplier, certifier or the USDA.
A comprehensive investigative story that appeared in the pages of the Washington Post referenced the Aurora matter, and a cozy relationship between the powerful Washington lawyer and lobbyist for Aurora, Dean and the OTA, and the former director of the organic program at the USDA. Alleged malfeasance at the Department has sparked the interest of Congress and an expanded investigation is currently taking place by the Office of the Inspector General at the USDA.
"Congress passed the Organic Foods Production Act of 1990 charging the USDA with preventing fraud; protecting the interests of ethical industry participants and consumers, observed Cornucopia's Kastel. "The obvious allegation here is that the regulatory branch, the USDA under the Bush administration, failed to properly enforce the law. It is appropriate for citizens who feel they were defrauded to seek a judicial remedy, he added.
The "sweetheart settlement between Aurora and the USDA provoked a consumer led effort to seek justice in federal courts. Nineteen separate class action lawsuits were brought against Aurora and several national grocery retailers selling Aurora's suspect organic milk including Wal-Mart, Target and Safeway. The lawsuits claiming consumer fraud were eventually consolidated into a single case in the federal district court in St. Louis. Earlier this year, federal court judge E. Richard Webber dismissed the lawsuit on procedural grounds. An appeal has since been filed seeking to bring the merits of the lawsuit, which have not been heard, back before the court.
"OTA's action, apparently backed by CROPP [Organic Valley], infuriates me, said Kevin Engelbert. "I hope every person and organization that belongs to OTA drops their membership immediately.
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