In a setback for organic almond growers and handlers in California's Central Valley, a federal judge this week dismissed a lawsuit protesting the requirement that almonds sold on the domestic market be pasteurized.
The debate over the requirement, which was implemented in 2007 after outbreaks of salmonella bacteria were traced to almonds in 2001 and 2004, was heated. The rule was developed by the Almond Board of California, the trade association for the nation's leading specialty crop export, and enacted by the U.S. Department of Agriculture. The almond board in 2007 concluded it was unacceptable that both consumers and the almond industry were at risk due to the cases of poisoning. Critics of sterilization were passionate advocates of keeping the almonds raw.
The plaintiffs had argued in their lawsuit that the Department of Agriculture had overstepped the scope of its regulatory authority when it implemented the sterilization rule. But a U.S. District Court judge in Washington, Ellen Segal Huvelle, dismissed the case on Monday on technical grounds - finding that the almond growers among the plaintiffs have no right to judicial review and that the handlers must seek an administrative remedy before coming to court.
Retail accounts dried up
"They took that whole market from us," said organic almond grower Nick Koretoff of Nick Koretoff Ranches in Fresno, referring to the loss of retail accounts that dried up because consumers who prefer raw product would not buy treated almonds.
Koretoff is a plaintiff in the case which his son, Steven, said came about in part because of the contention that it is unfair not to impose the same rule on European suppliers that is imposed on the U.S. almond industry.
"All we want is fair trade," said Steven Koretoff, an executive at a family organic almond business called Purity Organics Inc., in Kerman (Fresno County).
California produces 80 percent of the world's almonds and almost 100 percent of almonds sold in the United States. But other nations with Mediterranean climates, notably Spain, also produce almonds, and some U.S. retailers have turned to Europe for untreated nuts.
Even though protesting the pasteurization rule, organic growers like the Koretoff family kill any bacteria through a steam process. The regulation, Steven Koretoff said, has led to business losses.
In 2006, he was getting $6.25 for a pound of almonds. Demand fell after the rule went into effect on Sept. 1, 2007, and his price now is around $3.25. He said the company lost $3 million in 2007, $3 million in 2008 and is on track to lose $3 million in 2009.
"We're behind the eight ball," he said. "It's been a perfect storm, financially."
Bill Marler, a Seattle lawyer who for 15 years has represented plaintiffs in major food safety cases, including the 2004 salmonella cases that were traced to almonds, said Thursday that pasteurization is necessary.
"I can understand from dealing with the raw juice and raw milk and raw food people that they are very adamant that their products are better than pasteurized products. But in this instance, the evidence is very clear that this is the type of product that needs to be pasteurized," he said.