Known as the salmonella rule, it was developed by the Almond Board of California in response to outbreaks earlier in the decade and implemented by the U.S. Department of Agriculture.
In Washington, D.C., U.S. District Court Judge Ellen Segal Huvelle ruled Jan. 18 in a suit brought by Nick Koretoff Ranches, Fresno, Calif., against USDA Secretary Tom Vilsack.
Fifteen almond growers and handlers participated in earlier legal challenges. As they saw it, the policy hands over domestic market share to unpasteurized imports from Spain and Italy.
Steve Koretoff, general manager at Kerman, Calif.-based Purity Organics, estimates the rule cost his business at least $250,000 in lost sales the first year and more since.
“We still have an unlevel playing field,” he said. “We’re at a disadvantage compared to anybody in the raw foods movement. People are buying our competitors’ product when they could be buying it from us and we’re right in their back yard.”
In her 30-page ruling, the judge found the pasteurization requirement consistent with the almond marketing order’s outgoing quality control provisions.
“Because the salmonella rule ensures that only salmonella-free almonds are sold, it is not unreasonable for (Vilsack) to have deemed it a minimum quality requirement that contributes to orderly marketing and serves the public interest,” Huvelle wrote.
“The summary judgment we had hoped for would have said the Almond Board of California and the USDA did not have the legal authority to rule on quality as it pertains to bacterial contaminants,” said Will Fantle, co-director of Wisconsin-based The Cornucopia Institute, which helped coordinate the legal action.
California organic almond growers respect food safety concerns, Steve Koretoff said, despite opposing the rule.
“We’re in this dilemma where we think people should be able to buy raw food if they want, but at the same time we need to be conscious of how a potential outbreak would affect our market,” he said. “We asked the board for mandatory sampling rather than mandatory pasteurization. If any product had a presumptive positive test, then you’d pasteurize that lot. The board for whatever reason didn’t feel that was an adequate safety net.
“It seems to me that if this was truly a public health issue, all almonds sold in the U.S. would have to fall under the rules and regulations California product is subject to.”