How the Government Got in Your Backyard
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Some farmers who are committed to the organic philosophy are aggravated by the paperwork, intrusive inspections, and general costs that adhering to government regulations imposes on small farming operations, and so choose to avoid government certification. They can’t use the USDA Organic seal or describe their products as organic, but they can use descriptions such as “chemical free” or “sustainably grown.” As long as consumers are convinced and buy their product, the farmer gains the price premium of organic products without paying the costs of government certification that their organic competitors pay. So, for some farmers, there is an economic incentive not to comply with government rules. (And, let’s face it, how many of us uncomplainingly prefer to follow government or corporate rules when we can achieve the same objectives in a more straightforward, hassle-free way?) The farmer, however, does end up limiting his or her market, because government certification is, practically speaking, a requirement when selling to organic farm cooperatives, restaurants, and international markets.
Cheating and the Consequences
For those who think that these standards ensure that certification is a guarantee of organic wholesomeness, the bad news is that the government rarely imposes fines or revokes organic certification. Even when violations of organic standards are called to the attention of the USDA, it often takes years for anything to happen. A dairy in California was brought to the attention of the USDA in 2005 for violating organic standards (their cows didn’t have access to pastures, among other issues), but it wasn’t until 2007 that its ability to sell organic milk was suspended. In another instance, in 2007 a supplier of organic milk to major retailers like Wal-Mart and Trader Joe’s received a letter from the USDA telling it to clean up its act or risk losing certification. Complaints had been filed against the company for two years, but two years after receiving the letter it was still selling organic milk despite the fact that additional complaints had been received about their production practices. While it certainly seems as though the government is willing to let things slide for quite a while before it decides to act, on a day-to-day basis, it really isn’t the government, per se, that is making the decisions. That authority goes to another entity.
In the case in which the California dairy lost its certification, it wasn’t the USDA that was responsible for checking up on possible violations, it was that dairy’s organic certifier, Quality Assurance International. After the National Organic Standards were developed, the involvement of the federal government in their enforcement would best be described as indirect (though the government can change the standards). State and professional organizations certify producers and handlers who meet the federal organic standards. The USDA does not directly deal with producers and handlers, but it accredits and monitors the state and professional organizations that do the certifying. (As we will see in the chapter on fertilizers, state and local governments have historically had primary legal authority over land and water use, and the federal government commonly relies on them to enforce federal environmental laws. In many instances, including organics, such an arrangement undermines vigorous enforcement of the law.)
When a producer or handler applies for organic certification, the state or private agent makes an on-site visit to evaluate compliance with National Organic Program standards. The applicant must document the substances applied to the land for the past three years, and develop an Organic System Plan (OSP). The OSP describes the practices and substances to be used in producing the crop, the monitoring procedures and record-keeping systems to provide evidence that the plan is being implemented effectively, and a system for preventing organic products from mixing with nonorganic products or from coming into contact with prohibited substances during handling and processing. After certification, the agent returns for annual reviews to ensure that standards are maintained. A lot depends on the honesty of the applicant and the attention to detail of the certifier. A lot also depends on who else is watching and whether they send any complaints to the USDA. In both the cases mentioned above, Cornucopia Institute, a Wisconsin group, notified the USDA of the problems. Without this notification, who knows how long the problems would have continued? Even with notification, the problems continued for a long time.
Various certifiers can also set different standards. Despite the work of the USDA to provide a standardized definition of what is and isn’t an acceptable organic practice, certifiers may have requirements that are more strict than those set by the USDA, though they cannot have standards that are more lenient.
Although we hope that organic farmers stay true to their promises, it would be relatively easy for an organic farmer to apply a synthetic pesticide or fertilizer now and again and not be caught. Farmers aren’t the only ones who might allow synthetics to find their way into an organic system, however. The producers of supposedly organic fertilizers and even organic certification agencies have also been known to fudge things. In 2009, a producer that provided almost half of the organic fertilizer to the state of California was raided to see whether it was placing synthetic fertilizers (which they apparently had on hand) into their fish fertilizer products. A year earlier, another company had been found to be amending its organic fertilizers with synthetic additives, possibly for as long as seven years.
In 2006, the USDA revoked the license of a certification agency owned by an agrichemical business that had approved organic farms that were openly using chemicals. While the USDA had the relevant information in its enforcement files, it did not remove the certifier or the farms from the program until the Dallas Morning News—using the information in the USDA files—ran a story. Laws that rely on whistleblowers, the media, or public interest groups to embarrass the government into enforcing them are not models of effectiveness.
Many enforcement problems came to a head in 2010 when the inspector general of the Department of Agriculture issued an audit critical of the National Organic Program. The NOP responded by requiring certification agents to spot-check for pesticide residues on organically labeled produce more frequently, to check organic labels in stores and expose any bogusly labeled products, and to conduct unannounced inspections of organic producers and processors.
The Political Dynamics
The first time that the word organic was used in a legal context was in Oregon state law in 1974, and the first law actually defining the term was passed in California in 1980. In 1989 a report by the Center for Science in the Public Interest listed sixteen states with laws that regulated the labeling of produce as organic. These state laws were the primary source of organic legislation for a long time before for the federal government took any action.
In the mid-1980s, the organic industry was concerned about non-organic farmers cashing in on the popularity of the organic label and thus stealing their market share by offering cheaper, chemically enhanced products. The organics industry attempted to develop an internal consensus about production and certification standards, but it never happened.
Meanwhile, consumers were increasingly concerned about the use of chemicals in their foods. The 1989 Alar scare (see the pesticides chapter) caused consumers to flock to organic foods to avoid those foods supposedly tainted by dangerous chemicals. Consumer groups wanted to ensure the integrity of products that were sold under the organic label, since fraudulently labeled foods were waiting to take advantage of spooked consumers.
The organics industry turned to Congress in 1990 to resolve its standards and labeling issues, which led to the Organic Foods Production Act (OFPA). The industry believed that federal standards would be positive for them in several ways. Most importantly, a federal seal of approval would promote consumers’ confidence in the quality of organic products. Additionally, one federal standard would be less confusing to consumers than the many different state and private standards that were being used at the time. For example, California required that conventional methods not be used on a field for only one year before the field could be certified as organic. Other states required a thre
e-year transition period. It wasn’t clear whether a product certified in California should be sold as organic in states with the more stringent standards. A national standard would also help the industry gain access to lucrative international organic markets.
Despite the united support from the organics industry, consumer groups, and the executive branch, the OFPA faced substantial skepticism from representatives on the Committee on Agriculture in the House of Representatives, the committee with responsibility for legislation on the production of food. Problems occurred because many members of the committee had long-standing relationships with major agricultural producers in their districts and thus represented the concerns of large-scale, conventional farmers. Committee members were wary of attacks on conventional farmers by environmental groups and were worried about the additional expenses that organic methods might impose upon producers, particularly livestock producers. Organic methods seemed to strike many members of Congress as countercultural. As Texas Democrat Charlie Stenholm put it, “We are being asked to believe that our method of production agriculture is faulty. I’m not prepared to do that.”
The House Committee on Agriculture ultimately passed a watered-down farm bill in which such phrases as “sustainable agriculture” and “family farms” were made vague enough that both organic and conventional, mass-production farmers could claim that the bill neither promoted nor penalized chemical-intensive agriculture. The final bill also deleted funding for research on organic farming. The provisions of the OFPA were attached by amendment on the floor of the House, effectively circumventing the ability of the committee to prevent them from being passed. The law as passed allowed farmers to seek organic certification voluntarily, so that only those farmers who wanted certification would have to change their farming practices, while conventional farmers would not be affected by the new organic rules. The organics industry and consumer groups got together to facilitate speedy consideration of the OFPA by Congress, but its passage did not solve many of the conflicts that were present within the organics industry. Instead, it pushed these concerns onto the agencies that the OFPA created.
The USDA Takes Charge
The Organic Foods Production Act established the National Organic Standards Board to advise the USDA in developing appropriate criteria for identifying foods as organic. Congress created the NOSB primarily because of the fear that the USDA would be too closely allied with conventional farmers, and required that it be composed of farmers, processors, retailers, representatives of environmental organizations, and a scientist. While building consensus from all of the affected players may sound like a wonderful idea, in practice there are often long arguments between people with different perspectives and priorities. The NOSB took two years to get organized and three years to develop proposed organic standards. The USDA took another three years to review the proposal and issue preliminary rules. In sum, the first public draft of the rules appeared eight years after Congress ordered them to be developed.
POLITICS does not end once a law is passed. The end of one stage of the political process is usually just the beginning of the next stage. After a bill is passed, the executive branch is responsible for developing the detailed rules to implement the law. While the public rarely pays attention to the importance of the executive branch in this phase of policymaking, interest groups do. And so, even after a bill is signed by the president, these groups continue their attempts to influence policy. Agencies are required to publish draft regulations and allow a period of public comment. Interest groups mobilize their members to send the agency comments that are intended to influence the final regulations. Groups that lose in Congress try to weaken the regulations or to shift the costs onto someone else. Groups that win in Congress try to offset the influence of their opponents and to protect their interpretation of the language of the law. The OFPA is a classic case of these dynamics playing out—to the detriment of anyone who wanted the government to act quickly to implement the law’s intent.
When the standards were being developed, everyone wanted to be heard. From farmers to chemical manufacturers to backyard gardeners, people felt that their opinions were important and deserved to be incorporated. Those who didn’t believe in the quality of organic food didn’t go away despite the new legislation. If anything, they became more aggressive. Known as a think tank by some and a Beltway bandit by others, the Hudson Institute published a book in 1995 titled Saving the Planet with Pesticides and Plastic, which deconstructed the work of such organic pioneers as Rachel Carson. This book, among other efforts by those who questioned the value of organic production, led to a first draft of organic rules that upset many people.
The preliminary rules presented by the USDA were very sympathetic to conventional farmers. They allowed genetically modified crops, sewage sludge fertilizer, and food irradiation—practices that the NOSB would have banned from organic farming if left to their own devices. The organics industry mobilized its farmers and consumers in opposition to the proposed rules, and environmental groups mobilized their members as well. The USDA received 280,000 mostly negative comments from the public, forcing a revision. The final standards did ban genetically modified crops, sewage sludge fertilizer, and food irradiation, to the satisfaction of most in the organics industry. The regulations were approved in 2000 and were implemented in 2002—a dozen years after Congress passed the Organic Foods Production Act.
War Within the Organic Industry
The organics industry itself is composed of many participants with a variety of goals that are not necessarily consistent. These goals range from producing nutritious food in an environmentally sensitive way, to protecting small farms, to promoting locally grown foodstuffs, to supporting alternative food production and distribution networks (like farmer’s markets and health food stores), to promoting social justice, all the way to changing the philosophy and operations of modern farmers and food retailers. As the original organic standards were being worked out, the purists and the change advocates often found themselves at odds. Organic purists wanted regulations that would promote small farms, whole foods, and local distribution. Change advocates and entrepreneurs wanted to maximize the number of organic consumers—and thus the number of organic farms—and sought regulations that would promote rapid growth of the industry. A particular point of dispute between these factions was the use of synthetic processing aids and whether these would count as ingredients toward the 95 percent or 70 percent thresholds for qualifying for the “organic” and “made with organic ingredients” labels. There was also dispute over whether food contact substances, such as chlorine used to clean food preparation equipment, would count as synthetic ingredients. Purists wanted any synthetic aids counted; change advocates did not, arguing that without those substances, it would be virtually impossible to mass-produce organic foods for retail sales to the ordinary consumer. For purists, mass production of organics itself was a contradictory idea, and using synthetics violated the spirit and probably the entire concept of organic production.
Change advocates basically won in the USDA rules, which allow the NOP to grant exemptions for specific synthetic chemicals to be used in processing without affecting the product’s labeling if they are essential to making the product, do not substitute for an organic product, and do not negatively affect the environment or the healthfulness of the product. The purist faction was not satisfied with this rule and challenged it in court. In 2005, a federal appellate court sided with the purists, requiring that the USDA revise its rules and report back in one year. The ruling ordered products that failed to meet the new standards to be removed from the market within two years. The court’s directive raised the specter that many organic products would have to be reformulated or relabeled and posed a major economic threat to the organics industry, particularly to the processed goods sector, which had to combine many organic ingredients, often from multiple suppliers and processors, into a finished product. Future investments in the industry also would be threatened if the
number of organic products and their markets were restricted.
Various organics organizations attempted to work together to build consensus for a new rule to be submitted to the NOP and to Congress, but agreement was elusive. The Organic Trade Association, the industry’s main lobbying group, then took action. It avoided congressional debate or compromises by working with key members of Congress to insert new language into the 2005 agricultural appropriations bill after the final conference committee meeting between House and Senate negotiators. This process was unusual—and effective. A conference committee is only supposed to work out the differences between the versions of legislation passed by the House and the Senate; it is not supposed to add provisions that neither body has debated and voted on. If party leaders and lobbyists circumvent the legislative process in the name of speedy action, we lose the value of expert testimony, deliberation, consensus building, and legitimacy. The new law essentially overturned the circuit court ruling, allowing the NOP to permit the use of synthetic processing aids under restricted circumstances, and also allowing synthetic food contact substances to be widely used.