Organic Ruling Updated, Hot Issues Remain

The world continues to watch developments in the Arthur Harvey lawsuit, while the organic community, plaintiff Arthur Harvey, and the USDA work to find common ground on solutions. Harvey visited the All Things Organic Trade Show in early May, making himself available for discussion and questions at the exhibit table of the Independent Organic Inspectors Association (IOIA). It has always been Harvey’s intent to strengthen the integrity of the National Organic Program, and he feels strongly that, in the long term, the results of the lawsuit will be increased consumer confidence in the USDA organic label.

The latest development is the June 9 ruling on Harvey’s motion for judgment (summarized below), in which he asked the courts to take advantage of their ability to “fashion a remedy” within their authority under the Administrative Procedures Act (APA). The USDA had previously claimed that, under the APA, they could do no more than “hold unlawful and set aside” the regulations found to be in violation of the Organic Foods Production Act (OFPA). In response, the USDA described its amended proposed Final Judgment and Order as providing “a 270-day rulemaking period to be followed by a 24-month grace period for all counts.” Harvey’s proposal, while very similar, does contain some important differences. He feels that:

1. The solution is not restricted to merely removing problematic language from CFR 205 (the Organic Rule). Harvey points out that the APA does not restrict a court to setting aside agency action that is not in accordance with law or in excess of its statutory authority. In addition, the APA respects a court’s discretion in creating solutions that may require an agency to change its current or future practices in order to address past violations of its statutes or regulations.

2. There should be a uniform date for compliance. Harvey’s proposal differs from the USDA’s in that it puts the 270-day rulemaking period within the 24-month “grace period” for two counts (numbers 3 and 7) upheld in the ruling, and it has only a 24-month “grace period” but no rulemaking on the third count (number 1). Thus, the compliance date for all counts will be defined at the outset as two years from the date of the court’s order. This ensures a certain and uniform date for implementation of all three counts, regardless of differing amounts of time that may be used for the rulemaking on each. A uniform implementation date will help prevent the “consumer confusion” which the USDA considers a reason for phase-in periods. It is meant to provide a timeframe in which long-term planning for compliance can be created.

3. On the dairy herd issue, the USDA proposes a phase-in provision, with none of the time constraints mentioned with the other counts. The proposal allows dairy herds that are in the process of conversion whenever the new rule is issued to complete conversion under the invalidated rule. The affected operations should be able to figure out how to come into compliance but may have problems figuring out when to comply. Harvey did agree (on counts 3 and 7) to allow the USDA to exercise discretion in the details of implementation, based on public notice and comment. Should the court not order a uniform date for implementation, Harvey has asked that the court retain jurisdiction, and require USDA to make progress reports to the court, in order to ensure timely implementation.

4. With regard to clarification on the use of a nonorganically produced agricultural product in products labeled as “made with organic…,” that is now listed in section 205.606, Harvey asks that the word “may” should be replaced with “shall” in the commercial availability requirements; that “the current misleading USDA statements and guidance on its website and in the preamble to the Rule on this subject must be removed”; and notice to the public and affected parties of the correct interpretation of the regulation must be provided.

5. Public notice and input, Harvey is concerned that the USDA’s proposal does not completely assure that public notice and comment will be required and wishes to be assured that the process is open to the public as well as National Organic Standards Board (NOSB) and members of the organic industry.

On May 2, the Organic Trade Association (OTA) requested leave to intervene in the case and to appear at any hearing the court might hold. Even prior to the June 9 court ruling (summarized at the end of this report), press and conversations with the OTA indicated that they feel a change in the Act will be the best course of action. Others disagree.

The Center for Food Safety, Rural Advancement Foundation International (USA), National Campaign for Sustainable Agriculture, Organic Steering Committee, Beyond Pesticides, National Organic Coalition, National Cooperative Grocers Association, and Organic Research Associates have circulated a petition in an attempt to receive feedback from “industry, farmers, consumer groups, and certifiers” on their proposal for changes that would address the requirements of the court’s judgment but not require amendments to the Organic Foods Production Act. The goal is to get specific feedback and to submit the petition by mid-June on the following issues:

1. Changes to the National List to clearly allow the use of approved synthetic substances in or on products labeled as “made with organic ingredients”;

2. Re-evaluation of certain substances on the National List that may be available in non-synthetic forms;

3. Mandatory declaration of percent organic content in “made with organic” products;

4. A descriptive label for the “organic” category (95 to 100 percent) which further clarifies its distinction from the “made with organic” label;

5. Modification of 205.606 to clarify commercial availability requirements;

6. Creation of a definition of “organic feed” to allow the use of farm-raised, third-year transitional feed during conversion of dairy herds;

7. Requirement that all replacement animals be managed organically from the final third of gestation once an operation has converted to certified organic production.

John Clark of Roseland Organic Farms in Cassopolis, Mich., is a certified organic producer and co-amicus on the lawsuit. Clark is a purist with regard to his views about organics. and his analyses of the issues are based on long-term experience in organic production and certification. Clark and his wife, Merrill, have a history of involvement in the development of the organic regulations. Merrill Clark served as a consumer representative under the first round of appointments to the National Organic Standards Board. John Clark feels very strongly about the new herd issue and does not agree with the petition’s proposal to feed herds transitional feed during the transition year. He states:

“This is 100 percent rule. Transitional feed is not organically certified and cannot be fed to animals producing certified organic product of any kind. [The proposal is] even worse for dairy since this transitional milk is commingled with legitimate certified organic milk and the credibility of the certified organic milk supply is compromised. Unavailability of farm-raised feed—how is that defined? Why this big opening for dairy animals? Organic feed is being produced everywhere these days, and if organic dairy needs more of it, it pushes the production of more of it which is good. No definition of ‘transitional’ appears in the Act now, and it ought to stay that way.”

There continues to be much debate about the lawsuit, and simple answers seem far away. But then, nothing much has been simple about implementing the Organic Foods Production Act. With new and increasingly diverse organic products entering or wishing to enter the market, making decisions that will lead us onto a credible, simple, and efficient implementation path will become even more complicated. Even as we worry through the Harvey lawsuit, there are new issues on the horizon. Personal care items, pet foods, aquaculture, hydroponics, and more all await consideration and are certain to raise legal questions in the future. It is only a matter of time before we are embroiled in yet another dilemma. Now is when we set precedents and determine who will make the difference in what organics is to become.

Harvey makes clear in his proposal his desire to ensure ample opportunity for public notice and input with regard to any regulatory changes. His presence at ATO showed his willingness to meet, listen and explain his intentions. The organizations who signed the petition have also demonstrated that they want broad public input and to build consensus with the many different stakeholders of organics. This is the time to involve everyone affected by the changes to come. It is time to begin to work within our organizations and our networks to increase confidence in the integrity of organics and to make consumers feel a real part of the process.

Some people wish this had never happened. They want things to stay the way they are even if things do not comply with the Act or meet consumer expectations. Some may blame Harvey and the amici for the problems, but this day was going to come anyway. There have been too many attempts to place yet another synthetic on the National List as allowed in organic processed foods and too many attempts to use less and less organic feed or ingredients. Sooner or later this must be questioned, before the term “organic” loses meaning.

What will be the results of this case? Is OTA right? Will handlers who use synthetics cease to produce organic products if forced to label as “made with organic…” or to change their formulae? Will the results really lower demand for organic crops, thus hurting farmers? But if the OFPA is changed to a lower standard, will consumers lose faith in the organic label?

On June 9, 2005, the court’s final decision was issued. In the U.S. District Court of Maine, the judge gave the Final Declaratory Judgment and Order:

Count 1: The court has decided that CFR 205.606 does not create an exemption allowing the use of nonorganic agricultural products in or on processed organic products when their organic form is commercially available. The USDA has been ordered to, within 30 days of the Judgment, note this in the Federal Register and on the NOP web site, remove all conflicting references, and notify accredited certifying agents. Products manufactured under the old interpretation of 205.606 may continue to be produced and sold for two years, after which no non-conforming products may enter the stream of commerce.

Count 3: CFR 205.600(b) and 605(b) were found contrary to the OFPA. The matter has been remanded to the Secretary to conduct rulemaking notice and comment and to publish final rules in the federal register not later than 360 days from this date, in order to obtain the benefit of input from concerned parties such as the NOSB. Nonconforming products placed in the stream of commerce as organic while new rules are being promulgated, and afterward while operations come into compliance with the new rules, shall be temporarily exempted. The new rules shall become effective two years after this date, after which no nonconforming products may enter the stream of commerce.

Count 7: CFR 205.236(a)(2)(i), which creates an exception to the 100 percent organic feed requirements for conversion of dairy, was also declared contrary to OFPA. The matter was remanded to the Secretary to conduct notice and comment and to publish in the federal register final rules not more than 360 days from this date. Dairy farmers who, at the time the new rule becomes effective, are in the process of converting their herds to organic production in conformance with the contrary rule may complete that conversion. No milk produced under the contrary rules will be allowed to enter the stream of commerce after two years from this date.

It is time for the organic community to prepare for changes, get involved in the process, and offer guidance to the USDA. This is an opportunity to improve the quality of what is called “organic,” to build confidence in the label as well as the process that creates the label, and to bring consumers into a more powerful role around food choices. It is up to us—those who call themselves representatives of this industry—to uphold the integrity of the label and to encourage the public to comment during this important moment in the history of organic food.

*** Cissy Bowman is an organic certifier and manages Hoosier Organic Marketing Education, a nonprofit organization (317-539-4317 or [email protected]).

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