by Steve Gilman
Interstate NOFA Policy Coordinator
Although Interstate NOFA’s policy agenda stretches from soil health and food system justice to GMOs and the implementation of food safety regulations with numerous issues in between, here in the dawn’s early light of a new decade the Policy Committee is dealing more than ever with multiple challenges to organic integrity. Not surprisingly in this scoundrel time, an increasing number of trials have been of the top-down governmental variety. Understanding where we’ve been informs where we’re going – what follows is a more in-depth look at these federal onslaughts and the organic community efforts to thwart them.
How Did We Get Here?
The organic alternative has always had a tough row to hoe – so what’s the difference between now and the early days? In 1998 during the first rule-making phase, the stolid US Department of Agriculture (USDA) infamously put forward inserting GMOs, sewage sludge and food irradiation (plus another “66 points of darkness”) into the definition of organic in a brazen attempt to keep the fledgling upstart, with its radically attractive healthy food production practices OUT. Nowadays, with organic remaining the fastest growing segment of the food system, the Big Boys definitely want IN to the consumer-embraced $47 billion organic industry, by hook or by crook.
Standing in their way is the Organic Food Production Act (OFPA) passed by Congress in 1990, the statutory basis for the label’s multifaceted regulatory and enforcement standards. OFPA established the National Organic Program (NOP) to administer and enforce the rules with a system of accreditation for certification agencies that verify the farmers’ and handlers’ practices and a representative citizen’s advisory board with some actual oversight powers, the National Organic Standards Board (NOSB) which holds hearings for public testimony twice a year in locations around the U.S.
However, since the NOP was housed at Big Food Friendly USDA, there lies the rub. The organic community’s deeply deliberated decisions to knowingly go into the belly of the beast at that time was brought on by the increasingly unworkable, growth-limiting reciprocity agreements among the 60 some independent certifiers stretched out across the country and the fact that as a governmental agency USDA offers full legal sanctions against fraudulent operations, always a huge concern. While some advocates eschewed USDA’s “ownership” of the organic label, others saw the protracted struggle as an unrelenting battle for organic integrity – at the very least producing a subversive presence capable of giving USDA’s agribusiness-as-usual a chronic belly-ache.
During that 1998 debacle the blossoming organic community also learned an important lesson: We Are Not Alone. Thanks to NOFA’s voice in concert with myriad other grassroots groups sounding the alarm, USDA’s jiggered organic definition was met by a tremendous outpouring of citizen outrage, filing over 275,000 public comments (the previous record was 2,500) that resoundingly sent USDA’s spurious rule back to the drawing board together with a Congressional scolding. In 2002, after four more years of protracted community debate and USDA input, an OFPA-based rewrite emerged in the final rule that became known as the Gold Standard of food labels.
Watering Down Organics
It turns out that fraud isn’t necessarily adjudicated as such if it’s government sanctioned, however. While OFPA spells out the dynamics of evolving definitions of organic practices via continuously improving standards realized with organic community input through NOSB – it’s also important to recognize that this is a fluid process greatly subject to interpretation as well as industry and political manipulation. As a reminder, currently there are 1,200 lobbyists on Capitol Hill working for the agribusiness and food processing industry, spending some $350 million a year to influence policy decisions.
A major case in point is NOP’s allowance of hydroponics to fully qualify for the USDA Organic label. The gee-whiz soil-less plant-growing technology based on water soluble nutrients got a big boost via NASA’s attempts in the 1960’s to grow food out in space. The very definition of Organic, however, since its consolidation as a distinct, identifiable system of agricultural practices in the 1940s has been founded on the principle of building soil organic matter to enhance nutrient and microbial fertility for growing healthy crops, healthy animals and healthy humans. Its fundamental nature was expressed as “Feed the Soil, Not the Plant” – essentially the opposite methodology to conventional agriculture’s wholesale use of soluble synthetic chemical fertilizers and pesticides, developed by the heavily subsidized arms industry when they shifted to peacetime agricultural production after WWII.
Although pushed by some early hydroponic advocates, the allowance of organically certified hydroponics was never included – or categorically prohibited, either – in the final NOP regulations. Due to this purported lack of clarity and seeing a lucrative opportunity to add to their client lists, some individual USDA accredited organic certifiers began to certify hydroponic operations that use organic inputs, backed by the full authorization of the NOP. At the same time a number of other certifiers refused to approve soilless operations, citing the lack of any NOP certification standards to do so. Somehow, the NOP abides with both approaches.
From 2003-2009 clarification of these allowances became an ongoing task of the NOSB Crops Subcommittee via a series of discussion documents preparing for a formal recommendation to the NOP. In 2010, the NOSB reached the firm conclusion that hydroponic production systems could not be certified. After a NOSB recommendation is made, it is NOP’s job to put it on the rulemaking agenda, develop a proposed rule, open it up for public comment, and then develop a final rule that incorporates those comments. But the upshot in this case was that the NOP declined to follow through on the NOSB vote – opening the door even further to an increasing number of large scale hydroponic operations looking to cash in on the gold standard.
During this time increasing numbers of longtime organic advocates across the country denounced the ascendancy of the hydroponic certifications, most notably in Vermont where a growing group of “real organic” farmers and activists clamored to restore the rightful place of soil in organic certification. They staged a number of “Keep the Soil in Organic” rallies designed to catch the public’s ear and enlisted the Vermont Congressional delegation to take the issue to Washington.
In 2015, after 5 years of inaction NOP’s feeble response was to create a Task Force to conduct additional research and analysis of “soil-less” production systems in an effort to tamp down the mounting ire from the organic community. The Task Force was initially loaded with hydroponic industry representatives until called out by the soil advocates, a move later described as “an oversight” by agency administrators. Not surprisingly due to the polarized positions, the upshot of the 2016 Task Force Report publication was that there were two major positions about the inclusion of hydroponics in organic: one very much pro and the other very much con. Meanwhile, the hydroponic industry began to take cover under the looser “organic container” regulations that were put in place because they were also not categorically prohibited under the organic rule.
Subsequently the issue became even more contentious at the public NOSB meetings. Because NOSB members serve staggered 5 year terms there’s regularly new faces on the Board – and their appointments represent sectors with differing outlooks: four farmers, two handlers/processors, one retailer, one scientist, three consumer/public-interest advocates, three environmentalists and a certifying agent. Further, while new members may be nominated by the organic community, OFPA gives full appointment power to USDA to approve any candidates they so desire. In a number of past instances, to the consternation of organic advocates, USDA stretched the definition of “farmer” from an owner-operator to include corporate employees. Demonstrating their growing clout under the Orwellian moniker of the “Coalition for Sustainable Organics”, the hydroponics lobby managed to fully cement this allowance by getting the Senate Agriculture Committee to open OFPA during the negotiations for the 2018 Farm Bill and change the statute to give legal cover to allowing corporate employees to qualify for the farmer definition. So much for the inviolability of the OFPA refuge.
With many twists and turns a series of Crop Subcommittee proposals and discussion documents in 2016 and 2017 ended up holding the line on the 2010 NOSB recommendations to not allow hydroponics. But at the Fall 2017 NOSB meeting in Jacksonville, Florida where a full Board vote was scheduled the issue boiled over. A large vociferous contingent of soil-based organic farmers flew in from all around the country to testify while new NOSB members were heavily lobbied by hydroponic industry heavyweights working with the Organic Trade Association. The Board ended up not passing the Subcommittee proposal to explicitly ban hydroponic container growing. Since there was not a further proposal on the docket for a pro-hydroponic rule-making vote, NOP’s opinion that OFPA and the organic regulations explicitly do not prohibit hydroponics still holds, causing the issue to slide into a bureaucratic purgatory that thwarts further intervention.
Eking Out a Win
That’s not to say that concerted organic watchdog actions coupled with public outrage are toothless, however. At the Seattle NOSB meeting in April 2019, despite their previously maintained pronouncements, NOP was confronted with irrefutable evidence that USDA was illegally allowing the routine use of glyphosate herbicides just prior to gaining certification for hydroponic field based berry production systems. Allowed by some accredited certifiers with tacit NOP approval, the industry practice was to laser level a field, let the weed growth sprout, spray herbicide to kill them and then lay down a plastic weed barrier just prior to setting out acres of containers filled with a non-soil growing medium connected to hydroponic drip lines. In places like Florida especially, with its voracious weed growth, the use of herbicides alone was enough to give a tremendous competitive advantage to the organically-labeled hydroponics blueberry operations, effectively undercutting the market for many soil-growing organic farmers.
OFPA has always been clear that there has to be a 3 year transition period after any herbicide applications before an operation qualifies for certification. Thanks to evidence uncovered from a previously participating certifier that verified NOP’s herbicide allowances, USDA was forced to back down. They finally ended up issuing a “clarifying memo” to certifiers requiring that hydroponic container growers are to be held under the same 3 year transition requirements that regular organic farmers are subject to, as stipulated in the statute.
However, this “new” mandated standard for the hydroponics industry was also accompanied by a grandfather clause giving a “get out of jail free” card for the previously certified operations as well as getting the enabling certifiers off the hook:
“This memo applies to all new container systems that have not yet been certified under the organic program. It is not retroactive to already certified operations and sites. All currently certified container system operations retain their certification as long as they maintain compliance with the regulations.”
There was also a cryptic addendum, still unexplained:
“This memo clarifies that the legal requirements related to the three-year transition period apply to all container systems built and maintained on land.”
“On land”? To use a hugely scalable example, what about urban rooftop and other industrial forms of greenhouse/container production which are also routinely fumigated between crops? Are they not considered to be on “land” – as opposed to growing outside on fields – and therefore might fall under different allowable sterilization practices? There are questions aplenty since NOP has never set standards around greenhouse production either. Once again, a USDA clarification muddies the waters.
But hydroponics is certainly not a singular example in the lobbyist assault on organic integrity. The Organic Livestock and Poultry Practices (OLPP) animal welfare reforms restricting the industrial CAFO production of meat, milk and eggs, widely agreed to by the organic community and put in place under the Obama Administration were repeatedly delayed and then summarily abolished by the Trump USDA after heavy lobbying by threatened agribusiness entities. Another long delayed rule, concerning enforcement for the Origin of Livestock for organic dairy, has been sent back to the Federal Register for further comment. And with all its enforcement capacity USDA still hasn’t stemmed the tide of fraudulent organic grains coming into the country, much of it through a known back door in Turkey.
The list goes on. According to front page exposes in the Washington Post and other media, perfunctory USDA investigations haven’t prevented organic mega dairies from finding ways around the pasture rule. Recently, USDA has also severely limited NOSB’s scope of work, prohibiting them from setting their own agenda or addressing bigger questions of organic integrity – and narrowing their focus to defining what substances will be allowed in organic certification. In addition to its NOP involvements, the Trump Administration is also hard at work dismantling regulations put in place over many years to protect workers, citizens and the environment. To cite one example on the pesticide front, the EPA recently rubberstamped the industry’s call to overthrow a proposed ban on chlorpyrifos despite years of painstaking research showing substantial risk to children and developing fetuses as well as strong links to Parkinson’s disease and some forms of cancer.
The NOFA policy agenda has been involved with organic integrity matters one way or another for many years now. Our initiatives have been considered in countless Policy Committee meetings, Interstate Council reports, commentaries in The Natural Farmer as well as a host of workshops, debates and keynotes at the NOFA summer and winter conferences. We also work closely with our organic affiliates, the National Organic Coalition (NOC) and the Organic Farmers Association (OFA) on these issues. One question we always come down to that gets to the essence of organic integrity: how are consumers going to know what kind of food production they’re buying into if the ubiquitous green and white “USDA Organic” label distorts the standards to include fundamentally un-organic practices that the public is unaware of?
Organic farmers of the authentic kind, many with NOFA affiliations, have been in the forefront, spearheading the integrity movement all along. Putting together a concerted response, the initial “Keep the Soil in Organic” group morphed into the Real Organic Project (ROP) with a burgeoning national membership in 2018. Significantly, ROP was not created as another organic advocacy group, although members often find themselves in that position – for example, Executive Director Dave Chapman recently led the charge against the NOP herbicide debacle. Rather, the ROP was formed to create an alternative, add-on label to USDA’s Organic Certification to stand for bona fide soil based and animal welfare oriented practices to inform consumers looking for deeper differentiation, transparency and substantiation in the marketplace.
To take on the huge task of constructing an alternative national label the grassroots group created a 15-member Standards Board consisting of 9 farmers along with representatives from NGOs, stores, consumers, scientists and certifiers. Members of NOC and OFA are included in those categories. ROP also put together an 18 member Advisory Board that brings in present and former NOSB members as well as longtime organic advocates from around the country, all topped off by a 5 person Executive Board. The project is also open to the public, via supporting memberships.
Not surprisingly, their proposed label (with a targeted launch date in early 2020) excludes hydroponic/container type products as well as industrial style CAFO-produced milk, meat and eggs. Instead, the provisional ROP standards affirm basic longtime organic practices that meet consumer expectations. The ROP soil standard mirrors the European Union’s unambiguous criterion that requires crops to be grown in the soil, in contact with the subsoil, in contact with the bedrock. A further soil management standard adds force to language already in the OFPA and the NOP regulations that remains unenforced – requiring all certified farms to maintain and improve soil fertility. Another ends a huge loophole allowing big producers to continuously transition dairy animals by reaffirming the fundamental Origin of Livestock regulations. And the ROP standards further require genuine outdoor access for all animals while addressing numerous animal welfare practices. The full standards may be seen at:
By the very nature of its existence, the Real Organic Project has touched off controversy among both trade insiders and members of the greater organic community. Longtime government operatives caution that the gears of government grind slowly and the appeal process must be allowed time to work. Does ROP’s more esoteric criticism of NOP’s allowances only serve to confuse consumers? Won’t the addition of yet another food production label in the marketplace do the same thing? Doesn’t this disapproval turn consumers away from organic and/or give succor to detractors bent on running down the validity of the entire organic label? And importantly for NOFA and other farmer organizations, by using “Real Organic” in its name does that mean that the certified organic farmers not enrolled in the program are not really considered organic?
These issues have been on the agenda for the Interstate NOFA Policy Committee for some time now. Some NOFA Chapters are now in the process of reviewing such questions in their deliberations for support of ROP. For me, I’d say that overall the organic label has served our farmers, food system and environment well and it’s definitely worth fighting for to bring it back to true organic. At the same time we don’t want to throw the baby out with the bathwater – and should broadcast all the good aspects of organic at every opportunity. Not to be underestimated is the possibility that concerted consumer approval of this new add-on in the marketplace could ultimately pressure USDA to come around under an enlightened Administration.
Moreover, savvy consumers are searching out premium process labels that get them (us) the verification of what they (we) are looking for: pasture raised, grass fed, animal welfare approved, certified humane, climate friendly and so on – while cutting through mostly meaningless monikers such as “natural”. Further, I’d say that there’s a major difference between a possibly pejorative “Real Organic” label and the proposed “Real Organic Project” label that emphasizes the certifier’s standards. And the fact that this is an add-on label, where all ROP approved farmers must first be USDA certified, fundamentally upholds the authority of OFPA-organic.
The problem of fraudulent organic food cuts through all aspects of our food system. The bottom line is the reality that the industrial-style, fake organic CAFOs and hydroponic/container growers, with their lower production costs that crank out food cheaper than soil-based organic, is pushing real organic farmers out of the valuable USDA Organic market – and out of business. The ROP asserts that the usurpers can’t produce real organic food cheaper and while their food costs less to produce it is also worth less. Meanwhile, those producers continue to hide behind the mask of the organic seal – giving them unjust premiums and access to the organic sections of every store in the country. Kept in the dark, consumers have lost choice in the marketplace and they don’t even know it, nor do most produce buyers of the co-ops, grocery stores and supermarkets that are unwitting enablers of this fraud. Without legitimate verification where will protection, trust and transparency come from?
The Real Organic Project is already in high gear. Organic farmers and businesses around the country are signing up (close to 400 to date) and the 2019 pilot project that has been inspecting and certifying them is ready to go full throttle. Thus far in the Northeast, the NOFA-NY board has signed on in complete support and have committed their certification arm to also handle ROP certifications, while the certification programs in Vermont, NJ and Maine already fully qualify. It’s time to Get Real – our complacency is not an option. Look for a ROP label launch in the New Year – and Happy New Decade everyone!
Final Note: Building on the success of last year’s Organic Symposium with dynamic presentations by a roster of long-time organic stalwarts, ROP will again host a 2020 Symposium, “Earth in Human Hands”, April 3 & 4 at Dartmouth College in Hanover NH. For more information go to:
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