Pasteurization of almonds is carried out in one of two ways: By treatment with propylene oxide gas – in which case almonds cannot be considered organic – or by steam treatment. A law requiring treatment of raw almonds, designed with input from the Almond Board of California and industry, was first introduced in September 2007, largely in response to two salmonella outbreaks linked to unpasteurized almonds – one in Canada in 2001, and a second in Oregon in 2004.
But some organic almond growers have objected to the law, saying they can sell raw, unpasteurized almonds for up to 40 percent more than pasteurized ones. Concerns have also been raised about the cost of pasteurization and the market threat of cheaper, unpasteurized almonds arriving from overseas, as the law does not require imported almonds to be pasteurized.
This latest ruling, from Judge Brett Kavanaugh of the US Court of Appeals for the District of Columbia Circuit, stated that producers are able to sue to challenge agricultural market orders, although consumers cannot.
Following Tuesday’s ruling, almond farmer and plaintiff in the lawsuit Nick Koretoff welcomed what he called “a first step in overturning a destructive regulation.”
“The treatment mandate has been a financial catastrophe for me,” he said. “My consumers want raw, untreated healthy almonds and I have been denied the opportunity to sell them what they want.”
In March 2009, a federal judge had rejected the legal challenge, which was organized by campaigners for small-scale farming at the Cornucopia Institute.
“We are delighted by the court’s decision,” Cornucopia’s research director Will Fantle said in a statement. “At long last the farmers who have been injured by this rule will have the opportunity to stand in court and state why this poorly thought out regulation should be thrown out.”
The court’s opinion is available here .