by Steve Gilman

Interstate NOFA Policy Coordinator

On March 29, 2022 the final Origin of Livestock (OOL) Rule was at long last instituted by the U.S. Department of Agriculture (USDA), finally resolving statutory language ambiguities from the 1990 Organic Food Production Act (OFPA) that have been keeping family dairies at a major disadvantage in the organic milk marketplace for years now. The rule goes into full effect one year from that date. While we celebrate a Big Win for organic integrity and the surviving grassroots organic dairy farmers who have long suffered under the loopholes – we need to become even more vigilant going into the future.

Originally these regulatory changes were publicly vetted through the federal rule-making process and passed by the Obama Administration in 2015. But beset by Big Dairy’s hegemony and top down political machinations the final rule had been festering in the bowels of USDA ever since. More than that, for over 20 years organic dairy farmers and their advocates have been trying to get the Agency to put an end to the skewed statute interpretations employed by large scale mega dairies to rapidly ramp up their herd sizes.

Mega Dairies

As allowed by the National Organic Program (NOP) those loophole interpretations are responsible for creating the huge 20,000+ cow operations out west that are linked via pipelines into next door ultra-pasteurized processing plants with adjoining trucking terminals that bulk ship to distributers across the country. With a three month shelf life such milk now dominates the certified organic market. With the industry controlled by a handful of national buyer/processors who profit from this cheap, industrialized organic milk supply the resulting low pay price to family farm operations has been putting increasing numbers of these bona fide dairies out of business while further increasing Big Organic’s market share.

There’s no question that OFPA clearly requires that organically labeled milk and dairy products be produced from dairy cows that are continuously managed organically from before they’re born, from the last third of gestation. But because of the lack of certified organic dairy breeder stock back in the early days the regulations also allowed farmers to initially convert their whole herd to certified organic management under a one-time exemption. However as organic milk sales accelerated in the marketplace various dairies, milk buyers and certifiers began to take advantage of ambiguous transition language in the law to make allowances that were exacerbated by inconsistent interpretations and lax NOP enforcement.

As a result some dairies were allowed to routinely transition non-organic animals into their certified operations to rapidly increase their herds rather than having to breed and raise their own replacement animals from within their existing stock, as intended by OFPA. And taking further advantage of NOP’s permissive Big Business oversight some operations would also take organic animals out of a herd, raise them on cheaper conventional feed and then transition them back into organic output to save even more money. The measures gave these companies a huge competitive advantage over the family-scale farmers that have been honestly following the rules all along.

In 2015 organic community pushback against these loopholes reached a crescendo. Tom Vilsack, in his first stint as Secretary of Agriculture under Obama launched the rule-making process to clarify the regulations in April. Responding to the proposed rule thousands of farmers, organizations and consumers took the time to provide extensive comments to inform the regulations. However the process got bogged down during the subsequent USDA review and the clock ran out on getting to the Final Rule when President Trump assumed office in early 2017.

Political machinations

The upshot was that under Sonny Purdue, the new USDA Secretary, OOL was summarily buried for the next four years. Further, under Trump’s continuing efforts to rescind Obama-era regulations this was just the beginning of the end for other long sought organic regulations still in the pipeline. The Organic Livestock and Poultry Practices (OLPP) initiative, known as the organic animal welfare rule, was next on the list.

Garnering overwhelming support in the organic community as well as endorsement from the Humane Society and other animal rights organizations, OLPP was designed to modernize OFPA’s livestock and poultry regulations and create higher standards to meet competitive marketplace demands. The new regulations chiefly addressed animal and poultry living conditions, particularly requiring more space and outdoor access for egg-laying hens and meat birds. With a large outpouring of public comments the proposal actually made it all the way through the rule-making process in the waning days of the Obama Administration.

OLPP was finalized in April 2016 and published in early January 2017 just before Trump came into office. Quickly kowtowing to the lobbying of the big confinement-style organic poultry operations USDA Secretary Purdue ended up delaying implementation of the rule three times before withdrawing it entirely in March of 2018. A major public backlash rebuking the Trump Administration’s action met on deaf ears.

Lawsuits were filed and the withdrawal ruling received a huge number of comments opposing USDA’s decision. Finally, a Court decision in March, 2022 sent the Trump withdrawal back to USDA — now with Secretary Vilsack again at the helm under the Biden Administration. Despite calls to reissue the previously vetted Final Rule without delay, USDA is going forward with a new proposed rule requiring further time-consuming comment from the organic community.

Meanwhile, another proposed rule, Strengthening Organic Enforcement, is somewhere in USDA’s regulatory pipeline. It is designed to boost NOP  certification oversight regarding the production, handling and sale of organic agricultural products, including the well-documented fraudulent grain imports that are contaminating organic products and putting legitimate U.S. organic grain farmers out of business. Even though the comment period closed in October 2020 the Final Rule has yet to be seen.

What’s Next for Organic Standards?

Passed as part of the 1990 Farm Bill, the OFPA law might seem to be hopelessly outdated. However, the Standards are designed to keep evolving under “continuous improvement” provisions that requires USDA/NOP to process the ongoing recommendations from the National Organic Standards Board (NOSB), a unique governmental advisory body invested with special powers that includes legal oversight over materials that qualify for the organic label. Unfortunately NOP is proving to be OFPA’s weak link with scores of NOSB recommendations not acted upon.

But by responding primarily to the business lobbying of the Organic Trade Association (OTA) NOP’s interpretations continue to benefit industry over farmers and consumers. Their allowance of soilless hydroponics to qualify for the organic label is “a settled issue”, for instance. Certified confinement-style egg and milk producers hold the lion’s share of the consumer market. Pasture requirements for mega cow dairies remain loosely enforced and fraudulent grain imports continue to impact the integrity of the label.

Meanwhile, the continuous improvement provisions have quite different meanings for organic’s differing constituencies. For NOFA and our alliances it has everything to do with preserving and advancing organic integrity for farmers, businesses and consumers. For OTA, however, it often means continuously improving the bottom line of their corporate members looking for increased access to the burgeoning organic marketplace.

OTA is also politicizing continuous improvement via Congressional  marker bills that are designed to open OFPA to their favored amendments in the upcoming 2023 Farm Bill. They also hosted closely managed national workshops to position their favored initiatives under the guise of wide organic community buy-in. While there is a need to modernize some provisions those changes can much more safely be made administratively, thus avoiding opening OFPA to a contentious process where special interests could insert their own amendments to gain access to the organic label’s lucre.

In today’s politically polarized atmosphere this is an extremely dangerous time to open organic to hostile interests. Midterm elections are typified by increases in the party out of power and ending up with a radicalized Republican majority seems likely this November. Meanwhile, key Members are looking to delay substantive action on the Farm Bill until after they take power.

While it’s still too early to predict Farm Bill impacts on OFPA it’s important to recall the early battles over organic integrity when USDA released their first proposed rule for establishing organic regulations in 1997. Due to special interest manipulations the standards included the allowance of genetic engineering, irradiation and sewage sludge along with another “66 points of darkness” to qualify as certified organic practices.

Back then NOFA helped lead a huge public outcry that resulted in a record 275,603 comments, causing USDA to abruptly withdraw the proposal. After reviewing the comments and rewriting the standards a clean new proposed rule was launched in March of 2000 and based on positive input a Final Rule was issued that December, fully 10 years after the originating OFPA legislation.

Regarding OTA’s moves to open OFPA to institute their favored revisions it is important for them to realize that the mechanism for strengthening organic is not via expanding corporate hegemony – but by reinforcing real organic integrity provisions that truly resonate with consumers in this highly competitive marketplace. And they should further understand that the longtime organic movement stands ready to defend organic standards against any moves that threaten that authenticity.

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