by Steve Gilman
Interstate NOFA Policy Coordinator
In May 2023 a detailed Position Paper titled “Organic Agriculture is Soil-based: A Fundamental Principle Underlying Organic Crop Certification” was filed with USDA’s National Organic Program (NOP) by 5 dissenting USDA Accredited Organic Certifiers (out of 80 total) who have banded together refusing to certify soilless operations in the face of NOP’s continuing unilateral blanket allowance of hydroponic production to qualify for the organic label.
This courageous unprecedented certifier action has two main thrusts. First, it is an authoritative declaration detailing the historically-based, soil-centered stipulations of the organic method as legally codified by the foundational Organic Food Production Act of 1990 (OFPA) and subsequent NOP regulations.
Here’s just a few OFPA examples that the position paper expounds upon in great detail:
- In Section 7CFR205.2 the USDA organic regulations define organic as “A production system that is managed in accordance with the Act and regulations in this part to respond to site-specific conditions by integrating cultural, biological and mechanical practices that foster cycling of resources, promote ecological balance and conserve biodiversity.”
- Section 6513 b-1 says: “An organic plan shall contain provisions designed to foster soil fertility, primarily through the management of the organic content of the soil through proper tillage, crop rotation, and manuring.”
- Section 205.2 defines the “natural resources of the operation” as “the physical, hydrological, and biological features of a production operation, including soil, water, wetlands, woodlands, and wildlife.”
Second, this finely crafted public statement (that is still open to sign-ons from a growing list of supporting food and farm organizations and individuals) is designed to protect the insurgent certifiers against looming non-compliance action by NOP — requiring all certifiers to certify hydroponic operations under penalty of losing their authorized accreditation status.
By refusing to follow NOP’s policy of verifying hydroponics as organic the certification arms of NOFA-NY, NOFA-VT, the Maine Organic Farmers and Gardeners Association (MOFGA), the Ohio Ecological Food and Farm Association (OEFFA), One Cert and the Real Organic Project have literally put their certification businesses on the line. Recognizing there is strength in numbers and in an effort to avoid being picked off one by one the dissenting certifiers have been working for two years to research and craft the statement. The position paper cites OFPA’s specific provisions that enumerate the bona fide soil basis for organic production, while directly challenging NOP’s contention that their top-down allowance of hydroponics is a “settled issue”. For a significant segment of the wider organic community, however, the matter remains far from decided.
The Weakest Link
It’s no surprise that government agencies such as USDA are beholden to the political oversight of the current Administration, the influence of lobbyists and the balance of power in Congress. Under President Nixon, for example, Secretary of Agriculture Earl Butz’s “Get Big or Get Out” corporate-friendly dictum became responsible for the demise of thousands of family farms and the outright ascendency of industrial agriculture. USDA’s organic measures have ebbed and flowed between hostility and support accordingly: off to a slow start under George HW Bush; advancing a bit through Clinton; experiencing setbacks during George W Bush; making some progress throughout Obama; dire reversals under Trump and some forward motion during Biden.
From the early 1980s until 1990 when OFPA federally corralled all certifiers into one system, the organic landscape was populated by programs that roughly agreed on the meaning of organic, but had widely different procedures for verifying it, with a few jockeying for market power by refusing to grant reciprocity to farms certified by anyone else. And although OFPA established the first legal organic fraud protection against phony producers and products, numerous pioneering organic farmers and eaters regarded being housed in the agribusiness-dominated USDA as being trapped in the “belly of the beast”.
From the beginning, however, the rapidly growing organic upstart was giving the goliath severe stomach cramps. Once it became officially codified by Congress, organic farming represented an even bigger challenge to conventional agriculture’s embrace of toxic chemical fertilizers and pesticides and the Agency had to go to great lengths to scrub out depictions that even hinted that organic was indeed the superior method of agriculture.
To further dispel the mounting portrayal of a beneficial organic vs. noxious agribusiness residing within USDA’s hierarchy, the newly created NOP was relegated to USDA’s Agricultural Marketing Service (AMS) to pigeonhole organic as just another market initiative to be administered under the new “USDA Organic” label. While organic farmers chaffed under the limiting marketing designation, the precursor of the Organic Trade Association (OTA), the Organic Foods Association of North America, was right at home, instantly becoming even better-positioned to advocate from its members’ business standpoint.
In those early days the already well-established trade association sector was also one of the initial standards writers and with its growing lobbyist clout and its Washington DC headquarters, it was able to step in and take the lead influencing NOP’s escalating agenda. As OTA’a own historical account of those days reads:
“During the 1990s, the Organic Trade Association expanded its activities, including being involved in the evolution of the benchmark national organic standards published as a final rule in December 2000 by the USDA. Many of the provisions of the final National Organic Program were shaped by the Organic Trade Association’s American Organic Standards–the trade association’s latest iteration of organic standards developed through sector input and consensus.”
As the organic market proliferated outlying businesses and major Corporations increasingly reconfigured their operations to gain a piece of the action, bringing with them their own political influence to substantially buttress OTA’s lobbying status.
Despite attempts by meddling forces within USDA determined to co-opt and derail the organic regulations during the first rule-making phase in 2000 by inserting allowances for GMOs, sewage sludge, and irradiation, along with another “67 points of darkness,” a deafening record citizen’s response sent the rule back to the USDA drawing board. A revamped 2nd and final rule passed public comment scrutiny, at long last establishing the USDA organic regulations and launching the NOP.
However, the allowance of organically certified hydroponics was never included – or categorically prohibited, either – in OFPA or the NOP regulations. With OTA’s backing of the early hydroponic producers’ interest in the booming organic sector, NOP used the purported lack of language clarity to give credence to multiple interpretations of the statute. Abdicating their oversight responsibility, NOP deferred to the expanding list of certifiers who saw a lucrative opportunity to add to their client lists, and allowed them to certify hydroponic operations using organic inputs in their liquid formulations, despite there being no overall standards in place. At the same time, the handful of certifiers who refused to verify hydroponic and container producers were also given the discretion to refuse to certify soilless producers.
Turning a blind eye to the National Organic Standards Board
The originating OFPA legislation, created as a sub-section of the 1990 Farm Bill, also established the National Organic Standards Board (NOSB) — a citizen’s federal advisory committee charged with advising the USDA Secretary of Agriculture and NOP on aspects of the organic regulations, along with special powers to determine which substances should be allowed or prohibited in organic farming and processing. Appointed by the Secretary based on input from the organic community, the 15-member volunteer board serves staggered 5-year terms.
NOSB plays a critical role in the organic rulemaking process because it directly advises USDA and determines which inputs should be permitted on the National List of Allowed and Prohibited Substances. If a NOSB proposal receives a 2/3 majority vote it becomes a recommendation to the NOP. However, with a growing backlog of non-enacted proposals that have been piling up for years at the NOP, this is where disregarded NOSB recommendations periodically go to die.
As part of its OFPA-constituted scope, between 2003 and 2009, a NOSB sub-committee took on the task of trying to clarify the allowance for hydroponics via a series of discussion documents in preparation for a formal recommendation to the NOP. By a decisive 12-1 vote in 2010, the NOSB reached the firm conclusion that hydroponic production systems could not be certified. Under OFPA protocol, 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 NOP declined to follow through on the NOSB vote – opening the door even wider to an ever increasing number of large-scale hydroponic operations looking to cash in on the organic label.
In 2015, in an effort to tamp down the mounting ire from the organic community after 5 years of mounting demands for action to ban hydroponics, NOP’s feeble response was to create a Task Force to conduct additional research and analysis of “soilless” production systems. 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 was that there were two major stands 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, twice-a-year NOSB meetings. Because NOSB members serve staggered 5-year terms, there are 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 appointment 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 institute 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 – giving corporations a larger vote on the Board.
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 not allowing hydroponics. But at the Fall 2017 NOSB meeting in Jacksonville, Florida where a full Board vote was scheduled, the issue boiled over. On the heels of 60-some rallies held around the country, a large vociferous contingent of soil-based organic farmers flew in to testify, while newly appointed NOSB members were being heavily lobbied by the hydroponic industry heavyweights working with OTA.
Finally, by a vote of 8 to 7 the Board ended up not passing the Subcommittee proposal to explicitly ban hydroponic growing. Driscolls, Wholesum Harvest and other major industry producers even testified that their products were not hydroponic – but “container grown” instead, despite the fact that virtually all the nutrients are supplied to those plants by a liquid solution in a soilless growing medium. Indeed, most conventional hydroponic production of those crops takes place in “containers.”
Since there was no further proposal on the docket for a pro-hydroponic rule-making vote, NOP’s judgment that OFPA and the organic regulations explicitly do not prohibit hydroponics remains in force, despite the fact that the 2010 NOSB recommendation still stands. But the vote has caused the issue to slide into a bureaucratic purgatory that thwarts further intervention to this day.
NOP caught with its pants down
That’s not to say that concerted organic watchdog actions coupled with public outrage are toothless, however. At the following NOSB meeting in Seattle 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 granting certification for hydroponic container field-based berry production systems. Allowed by a number of accredited certifiers with 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 soilless growing medium connected to hydroponic drip lines. In places like Florida, with its voracious weed growth, the use of herbicides alone was enough to give a tremendous competitive advantage to the organically-labeled hydroponics berry operations, effectively undercutting the market for many soil-growing organic farmers.
OFPA has clear language that using herbicides is a prohibited practice and there has to be a 3-year transition period after any herbicide applications before an operation qualifies for certification. Thanks to evidence uncovered via a previously participating certifier that blew the whistle on NOP’s illegal herbicide allowances, USDA was forced to back down for once. They finally ended up issuing a “clarifying memo” to all certifiers affirming that hydroponic container growers are to be held under the same 3-year transition requirements that regular soil-based organic farmers are subject to, as stipulated in the statute. However, this newly mandated standard for the hydroponics industry was also accompanied by a novel grandfather clause giving a “get out of jail free” card for all the previously certified operations and summarily 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.”
A Petition, a Lawsuit and an Appeal
In 2019 things really started to heat up on the legal front. The Center for Food Safety (CFS) filed a petition citing the NOSB recommendation that USDA should not certify hydroponics as organic and called for the NOP to initiate the required rulemaking to prohibit organic certification of hydroponically produced foods – as well as to revoke any existing organic certifications previously issued to hydroponic operations. In June USDA summarily denied the CFS petition stating, “NOP’s analysis concludes that organic hydroponic systems cycle and conserve resources in a different way from soil-based systems, however, that does not make them incompatible with the vision for organic agriculture expressed in the OFPA.”
Then, in the aftermath of the November Jacksonville NOSB meeting debacle, CFS in concert with 8 organic farmer and organizational plaintiffs sued USDA in 2020 for denying their petition on the basis that OFPA requires farms to build soil fertility in order to be certified organic and that the soilless hydroponic operations therefore cannot comply with the federal organic standards. USDA argued that this provision only applies to the farmers where soil is involved in the growing of organic food. Meanwhile, the Coalition for Sustainable Organics, representing an expanding list of well-heeled certified organic hydroponic growers, also stepped in to oppose the lawsuit.
In March 2021, the Court sided with the government – and granted USDA’s motion for summary judgment while disagreeing with CFS’s complaint and finding that “USDA’s denial of the rulemaking petition reasonably concluded the applicable statutory scheme does not exclude hydroponics from the organic program.” After the decision was released, CFS filed an appeal to the Ninth Circuit Court of Appeals.
In its Appeal, CFS led a plaintiff coalition of long-standing organic farms and stakeholder organizations. In addition to underscoring the stipulations for soil-based agriculture specified in OFPA, they also addressed USDA’s major shift in testifying that the soil fertility requirement was only “applicable to production systems that do use soil,” saying this amounts to “an extra-statutory exemption” and an “unlawful loophole” created by USDA.
But once more ruling in favor of USDA, the Appeals Court found that “hydroponic systems are nowhere explicitly prohibited” and not among the listed “prohibited crop production practices and materials” and further “the OFPA does not clearly require USDA to issue the requested rule.” However, the bottom line that remains for farmers is that hydroponic producers can sell their crops as organic without building soil fertility, while organic farmers growing food in soil have to meet various soil-building requirements to be certified organic.
The powerful alignment of political and business forces in support of organic hydroponic profits is prodigious. But as evidenced by the continuing “keep the soil in organic” challenges that continue to galvanize widespread public attention, along with the success of the Real Organic Project’s enlisting farmers into organic certification add-ons prohibiting hydroponics and livestock confinement operations, organic integrity remains a hot button issue.
Corporate Capture
Conceptually, “corporate capture” is when an economic elite is able to exert undue influence over organizations, the political system and/or decision-makers without being accountable for their dominance. They have the concentrated power to control the rules under which they operate and to direct and usurp the handing out of public and private resources in their own self-interest.
On the grand scale, arguably the U.S. government is a fief of the multinational corporate entities – a depiction dramatically forewarned by the famous “military-industrial complex” alert that former President Dwight Eisenhower included in his 1961 farewell address. But further, thanks to the Supreme Court’s 2010 Citizen’s United decision, all legal restraints on the extent of corporate financial involvement have been removed in politics – thus maximizing corporate over national interests. Meantime corporate CEOs are able to maintain exorbitant pay levels while remaining above the reach of the law and binding enforcement.
The escalating corporate co-optation of organics is not to be discounted. Beginning in 2002 soon after the establishment of the organic regulations, corporate agribusiness acquisitions have accelerated to now owning the top organic processors along with their thousands of supermarket brands. But due to marketing subterfuge, you won’t see the names of the billion-dollar owners like General Mills, Coca Cola, M&M, Cargill, ConAgra, Campbell’s Soup, Perdue Farms, Danone, etc. on the label.
Despite its touted claims of representing a wide range of farmers and consumers, OTA is unquestionably a full-blown trade association lobby heavily dominated by mainstream corporate members. OTA has a track record of launching their own self-serving business initiatives and their fingerprints are all over surreptitious actions that seemingly come out of the blue to influence NOP, USDA and Congressional proposals and undermine organic standards. Way back in 2005, for example, OTA already had the clout to insert a midnight rider in an appropriations bill passed by Congress that overturned a federal court ruling and opened the door for non-organic, non-agricultural, and synthetic additives in food products bearing the “organic” label.
Moving the Organic Movement Forward
As the OFPA-verified organic standards took hold in the early 2000’s shutting down fraudulent operations and boosting consumer trust, it became known as the “Gold Standard” of highly transparent and verifiable food labels. When Big Ag initially tried to squash it, a strong and dedicated public reception created a dominant organic sales growth in the marketplace, causing the corporate entities to reconfigure their outlook and move into takeover mode.
Despite previous setbacks, as the widely disseminated Certifiers’ Position Paper makes clear the grassroots struggle against NOP’s allowance of hydroponics is far from over. How this will be dealt with by USDA is uncertain. While the certifiers’ loss of accreditation under a non-compliance ruling is an ever-present possibility, in the face of growing rebel certifier and organic movement solidarity, it would seem foolhardy for USDA to stir up further opposition.
Although the powerful alignment of corporate forces in pursuit of organic label profits is prodigious, the “keep the soil in organic” challengers persist in galvanizing widespread public attention that is keeping organic integrity as a core consumer issue. With over 1,000 farms across the country now verified under its add-on label to USDA-certified organic, the up-and-coming farmer-led Real Organic Project (ROP) is leading the charge against NOP-certified hydroponic and livestock confinement operations. However, ROP also loses a number of farmers every year who have had it with USDA’s subversion of the organic label and quit their NOP certification – but along with it also goes their concomitant coverage under the ROP seal.
Consumers are leaving organic as well. Due to the corporate label takeover, organic is losing its prestige in the marketplace. While savvy eaters know to steer clear of hydroponic berries and veggies, confinement livestock and factory-style eggs in favor of verifiable soil and pasture-based alternatives, the general public is left at the mercy of fraudulent products bearing the organic label. With genuine organic choices diminishing in the marketplace, advocates are left with the dilemma of not damaging authentic organic growers when calling out the spurious producers hiding behind the label.
Meanwhile, “regenerative agriculture” is emerging as the agribusiness darling. Covering up mostly conventional chemical ag practices with no definition or standards in place, regenerative has emerged as the perfect toothless disguise for agribusiness-as-usual. To meet accelerated climate goals USDA is promoting billion-dollar incentive schemes to enlist farmer participation while allowing the longtime polluters to keep on polluting when they make carbon credit payments for unverified agricultural practices to achieve a supposed “net zero” climate impact. Overall this self-styled upstart is gaining credibility in the public arena at the expense of the organic label’s bona fide soil health, carbon-sequestration practices as the genuine regenerative solution to the climate food supply crisis.
It is time for the organic movement to fully rally, rise up and unite to save organic integrity. We’ve come together strongly in the past when organic was threatened from within and without. NOFA has always voiced strong support for organic food and local producers – today these success stories need to be greatly amplified. With the growing impact of climate emergencies, NOFA Chapters need additional support for farmer relief funds. At the federal level, additional advocacy is needed to support organic and sustainable agriculture initiatives in the Farm Bill. And meantime, our united voices can help protect the rebel certifiers’ position paper by signing on at:
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