Blog By: Nathaniel Richey
Faced with an epidemic of chronic conditions, many have turned to organic foods in the hope of preventing the poor health that industrialized society’s dependence on potentially harmful chemicals in agriculture may have caused.[i] Since the debut of the USDA’s organic certification label in the early 2000s, the USDA has faced criticism concerning the label’s integrity, such as criticism as to the criteria used to qualify food as organic, the mishandling of organic products, and the insufficient measures to protect against fraudulent organic labeling.[ii] The USDA recently published the Strengthening Organic Enforcement Rule, effective on March 20, 2023, against a backdrop of years of scrutiny of the agency’s lackluster enforcement of organic standards.[iii]
Pursuant to the Organic Foods Production Act (“the Act”), the Secretary of Agriculture established the National Organic Program, an organic certification program.[iv] The Act established standards an agricultural product must satisfy to receive an organic label, including a requirement that the agricultural product be produced and handled without the use of prohibited synthetic chemicals, restrictions against growing agricultural products on land previously exposed to prohibited chemicals, and a requirement that organic farmers produce and handle foods in compliance with an organic plan established by agreement with a certifying agent.[v] The Act also requires the Secretary of Agriculture to promulgate a “National List of approved and prohibited substances” for use in organic food production.[vi]
American consumers have a variety of reasons for purchasing organic food, commonly including health and environmental reasons.[vii] Whatever the reason for purchasing organic food, American consumers ought to be able to rely on the “USDA Organic” label to accurately reflect that an agricultural company produced its product bearing the label in compliance with USDA organic standards. Unfortunately for consumers, however, the USDA’s lackluster enforcement of organic standards has rendered the integrity of organic certification precarious, making stronger enforcement of organic standards a much-needed development in the USDA’s regulatory operations.[viii]
Scrutiny over the USDA’s lackluster enforcement of organic standards, thus undermining the integrity of the organic certification, is nothing new. Take for example a case wherein the USDA promulgated guidance that allowed organic producers to use compost containing an unapproved synthetic substance, so long as the substance was not added during the composting process.[ix] The guidance was held to be inconsistent with a regulation unequivocally prohibiting the use of compost containing an unapproved synthetic substance.[x] The USDA also failed to prevent the misleading labeling of imported seafood as “organic,” despite no U.S. standards for organic seafood.[xi] Further consider the USDA’s practice of allowing farmers to hire and pay outside inspectors to certify their farms as organic, a practice which benefits the USDA because it enables the agency to keep costs low by hiring fewer inspectors.[xii] However, this practice may have led to questionable organic certifications, including the organic certification of a Colorado dairy farm.[xiii] When a Washington Post reporter submitted the Colorado farm’s “organic” milk to undergo laboratory testing, the analysis of the milk’s chemical composition suggested the cows were not grazing to the extent required for USDA organic certification.[xiv]
In response to the Agriculture Improvement Act of 2018, the USDA published the Strengthening Organic Enforcement Rule on January 19, 2023.[xv] The new rule creates important requirements, including requiring National Organic Program Import Certificates for imports of organic products, establishing uniform qualification and training for organic certifying inspectors, requiring more frequent reporting of data on certified organic operations, and requiring certification of more intermediates in organic supply chains.[xvi] The implementation date for the new rule is March 19, 2024.[xvii]
The foregoing examples indicate the integrity of the “USDA Organic” label is suffering, showcasing the need for the USDA’s better-late-than-never Strengthening Organic Enforcement Rule to improve the label’s integrity. Consumers of organic agricultural products and high-integrity organic food producers alike can hope that the new rule will strengthen the reliability of the “USDA Organic” label as a mark that reliably and accurately reflects compliance with USDA organic standards and superior food quality. Consumers have a right to no less than the integrity of a label for which they pay a premium.[xviii]
[i] See, e.g., Chris Kresser, Well Fed but Undernourished: An American Epidemic, Kresser Inst. (Apr. 28, 2018), https://kresserinstitute.com/well-fed-but-undernourished-an-american-epidemic/ [https://perma.cc/5EKV-DSUT]; 2. Americans’ Views about and consumption of organic foods, Pew Rsch. Ctr. (Dec. 1, 2016), https://www.pewresearch.org/science/2016/12/01/americans-views-about-and-consumption-of-organic-foods/ [https://perma.cc/V4TT-G7X3]; Axel Mie, et al., Human health implications of organic food and organic agriculture: a comprehensive review, 16 Env’t Health 111 (2017).
[ii] See Keller & Heckman LLP, United States: USDA Finalizes The Strengthening Organic Enforcement Rule, Mondaq (Jan. 25, 2023), https://www.mondaq.com/unitedstates/food-and-drugs-law/1274902/usda-finalizes-the-strengthening-organic-enforcement-rule [https://perma.cc/JQK4-U3AT].
[iii] See id.; National Organic Program (NOP); Strengthening Organic Enforcement, 88 Fed. Reg. 3548 (Jan. 19, 2023) (to be codified at 7 C.F.R. pt. 205).
[iv] 7 U.S.C. § 6503; National Organic Program (NOP); Strengthening Organic Enforcement, 88 Fed. Reg. at 3549.
[v] See 7 U.S.C. § 6504.
[vi] 7 U.S.C. § 6517(a); 7 C.F.R. § 205.203(e).
[vii] See Pew Rsch. Ctr., supra note i.
[viii] See, e.g., Ctr. for Env’t Health v. Vilsack, No. 15-cv-01690-JSC, 2016 U.S. Dist. LEXIS 79984, at *1-42, *12 (N.D. Cal. June 20, 2016); Consumer Complaint and Petition for Rulemaking and Collateral Relief, Ctr. for Food Safety (July 11, 2017), https://www.centerforfoodsafety.org/files/orgaquausdapetitionfinal_7-11-07.pdf [https://perma.cc/SKR3-97P8]; Peter Whoriskey, Why your ‘organic’ milk may not be organic, Wash. Post (May 1, 2017), https://www.washingtonpost.com/business/economy/why-your-organic-milk-may-not-be-organic/2017/05/01/708ce5bc-ed76-11e6-9662-6eedf1627882_story.html?utm_term=.11561b347f25 [https://perma.cc/8UTB-YSQ9].
[ix] Vilsack, No. 15-cv-01690-JSC, 2016 U.S. Dist. LEXIS 79984, at *12.
[x] Id. at *13.
[xi] Ctr. for Food Safety, supra note viii.
[xii] See Whoriskey, supra note viii.
[xiii] See id.
[xiv] Id.
[xv] See Keller & Heckman LLP, supra note ii; National Organic Program (NOP); Strengthening Organic Enforcement, 88 Fed. Reg. at 3548.
[xvi] Id.
[xvii] National Organic Program (NOP); Strengthening Organic Enforcement, 88 Fed. Reg. at 3548.
[xviii] See David Watsky, How Much More Do Organic Groceries Cost?, CNET (Feb. 17, 2023, 8:34 AM), https://www.cnet.com/home/kitchen-and-household/how-much-more-expensive-is-organic/ [https://perma.cc/N5Z6-92L4] (noting that, though prices of organic groceries have gone down over the years, organic groceries are about 21% more expensive than nonorganic groceries).