USDA calls it simple clarification; others see weakening of organic standards and threats to consumer confidence

When the U.S. Department of Agriculture finalized national organic standards under its National Organic Program in 2001, the effort was heralded as an unprecedented partnership of public and private interests inclusive of consumer, industry and government agendas.

But some in the organics industry are concerned that USDA is taking actions that may undermine and weaken the standards—and consumer confidence in the organic label—without public input or the involvement of citizen and industry representatives on the National Organic Standards Board. If that sounds like an old complaint, USDA's April 13 release of four directives, or "guidance statements," regarding implementation of the organic program turned up the volume considerably. One of these directives revisits the scope of the program itself, eliminating some product categories formerly said to be eligible for USDA organic certification.

Under the scope directive, producers of personal care products, cosmetics, dietary supplements, fertilizers and soil amendments, fish and seafood, and pet foods may not display the USDA organic seal or claim adherence to NOP standards; producers have an 18-month window to use existing supplies of packaging with the seal. During that window, USDA said, standards for seafood and pet foods may be developed.

Despite a May 2002 directive explicitly stating that these categories would indeed be eligible for certification under NOP, USDA's position is that they are simply restating and clarifying the regulations made into law in 2001. "These [directives] are not policy statements, these are not interpretations, or 'Here's what we think.' It's simply what the regulations say," said Barbara Robinson, USDA deputy administrator, transportation and marketing programs. "All of these [directives] are what is in the regulations and what is enforceable in a court of law."

Organic advocates are concerned that the directives were issued without due process and excluded NOSB participation and public comment; that anyone can call products in the newly noneligible categories organic—even "certified organic"—without penalty; that the three additional directives loosen the reins on practices outside of what consumers understand organic to mean; and that USDA's actions may add up to a pattern of bad faith with respect to the organic industry.

The three additional directives allow certifiers to approve practices that include a "blind" approach to inert ingredients in pesticides, use of noncertified fish meal as livestock feed, and broader use of antibiotics and other drugs in organic livestock.

Robinson said that these directives were precipitated only by NOP's need to address certifier questions. "All of these statements were prompted by one basic premise, and that is what is enforceable under these regulations," she said. "The [NOS] board was given advance notice; we gave the board and the Organic Trade Association copies of the statements the day before we published them."

Critics of the agency's actions say that these guidance statements alter the way in which the rules are understood and implemented, and that that alone should have dictated a process encompassing NOSB's legally mandated advisory role, as well as public comment.

Sen. Patrick Leahy, D-Vt., the "father" of the organic standards and labeling program and author of the law that chartered them, is among the critics. "Unilateral fiats like these may violate the letter of the law, and they certainly violate its spirit," Leahy commented by e-mail. "Organic producers and consumers are intent on making the organic labeling program work and on making the standards meaningful. Directives like these should not be issued without the opportunity for comment by the public and by the National Organic Standards Board that Congress created to give USDA technical advice on these issues."

Larger questions
Organic industry trade and advocacy organizations and consumer interest groups have begun to respond to USDA's actions. The Organic Trade Association, based in Greenfield, Mass., issued a backgrounder opposing the 2004 scope statement (posted on www.ota.com). The Keep Antibiotics Working coalition has written to Secretary of Agriculture Ann Veneman in response to the antibiotics directive. Consumers Union, based in Yonkers, N.Y., has published a strong statement on its www.eco-labels.org Web site along with a copy of its letter to USDA protesting weakening of the organic standards.

The NOSB itself passed a resolution on April 30 in Chicago expressing "its strong opposition to and concern with the NOP's issuance of significant policy directives without advanced notification to or consultation with the NOSB."

NOSB's statement reflects a wider, growing—though not universal—unease about USDA's intent with respect to interests outside the agency's walls. "Beyond the dozen or more legal and technical issues entangled in these directives, there are some larger questions about the relationship of the regulators to the organic industry," said Mark Lipson, policy program director for the Santa Cruz, Calif.-based Organic Farming Research Foundation (and the author's brother). "How much more confused and difficult will it get, and what does the long-term response need to be?"

Urvashi Rangan, director of Consumers Union's eco-labels.org project, expressed belief in the inherent value of the law despite the erosion of good faith. "We know the law is good and sound, and the regulations are fairly sound," Rangan said. "There's always room for improvement. People's time on the NOSB should be spent on improving the standards. Instead, all we've been doing since the implementation of this program is preventing USDA from weakening the standards. And these actions taken to undermine the standards came directly from USDA, the agency charged with protecting the [organic] label."

USDA's Robinson contends that USDA has the best interests of organics in mind. "USDA is certainly not attempting in any way to undermine the standards or growth of this industry. We can't do that. We're bound by the law, and we're bound by the regulations," Robinson said. "I park my feelings at the door, and it's my job to make sure that these labels and standards have complete integrity."

Others aren't so sure. "It certainly is a wake-up call," said Jim Riddle, endowed chair of agricultural systems at the University of Minnesota and vice chair of NOSB. "I'm very concerned about this process. ... These are new rules that have not gone through the rule-making process."

Elaine Lipson ([email protected]) is a Colorado-based free-lance writer and author of The Organic Foods Sourcebook (McGraw-Hill Contemporary, 2001).