Tuesday, September 20, 2005

The organic label and beyond

What, precisely, is going on with the organic label in Congress?

I found the e-mail I received last night from the Organic Consumers Association (posted here) troubling, important---and somewhat confusing.

Why, suddenly, was the Senate "acting in haste and near-total secrecy" to water down organic?

From what I can tell, the story goes like this. In 2002, a Maine organic blueberry farmer and National Organic Program inspector named Arthur Harvey took exception to the USDA's newly rolled out Organic Food rule, which sought to codify organic standards. Harvey charged that certain aspects of the Rule amounted to a de facto loosening of Organic Foods Production act of 1990.

For one, the Organic Rule allowed processors to use conventional ingredients “not commercially available in organic form” in foods that would be labeled organic--which certainly cedes a lot of power to processors that are using the organic label only as a marketing tool. Next, it sanctioned the use of synthetic substances in food processing. Finally, it allowed dairy farmers to use 20 percent conventional feed in the first nine months of a dairy herd’s one-year conversion to organic.

So Harvey sued the USDA, using the agency's then-chief Anne Veneman. The case is now inscribed in the annals of agriculture history as Harvey v. Veneman.

The suit initially failed--a U.S, judge and a Maine judge essentially sided with Veneman. But in January of 2005, an appeals court sided with Harvey--but it didn't spell out how the ruling should be enforced.

To make a complicated story simple, while stakeholders with a genuine interest in preserving "organic" as a meaningful label tried to sort out how to respond to Harvey v. Veneman, the big processors, under the flag of the Organic Trade Association (OTA), cobbled together a pro-industry agenda and presented it to the Senate a solution to the problem of how to enforce Harvey v. Venemen.

The OTA is essentially a front group for industry players that want to squeeze the organic label for profit; its member list includes Kraft and Horizon, the organic arm of dairy giant Dean Foods. (Horizon, the number-one seller of organic milk, is notorious for keeping many of its cows on feedlots.)

The strategy seems to be to use the dispute over issues raised by Harvey to get Congress to take power from the National Organic Standards Board’s (NOSB), which has a strict view of what organic means, and hand it over to the USDA, generally the handmaiden of industry. Such a legislative move would be difficult to challenge in court,

Thus Harvey's perfectly reasonable lawsuit appears to have had the unintended consequence of giving industry the chisel with which to puncture federal law around what "organic" means.

While I fully agree with the Organic Consumers Association that everything must be done to fight this shady effort, and I applaud Harvey for doing his best to preserve "organic," I also think it's time to go back to basics: Grow your own food when you can, buy from growers in your area whenever possible, and reject as much as you can processed food.


Anonymous Anonymous said...

I’m pasting in this morning’s reply from Emily Brown Rosen to Grace Gershuny’s justification (on SANET) of The Organic Trade Association’s (OTA) peremptory action -- trying to unilaterally slip through a food industry-friendly, back-door amendment to the Ag Appropriations bill.
It’s my own feeling that OTA is ignoring the grass roots organic movement of farmers and consumers at their peril. I understand that even some of their own Board members were not consulted concerning this hasty and dangerous action of opening the Organic Foods Production Act to further meddling by the powers that be.

In addition to the very necessary action of contacting our Senators, perhaps OTA should hear comments and inquiries from the heart of organics…

Organic Trade Association – 1-413-774-7511
Katherine DiMatteo info@ota.com


Steve Gilman
Ruckytucks Farm
Stillwater, NY 12170

Emily Brown Rosen
Organic Research Associates, LLC
P.O. Box 5
Titusville NJ 08560
fax: 609-737-6652

Yes, there are a lot of broad, simplistic statements being made on both sides about the proposed change to OFPA put forth by OTA and industry . Unfortunately we are dealing with a sudden action that has not been open to public debate, and the resulting tendency to overstate the issues, perhaps on both sides, in an effort to engage action one way or the other. OTA's proposed amendment was not provided to OTA members or the public until Sept. 19th, at least 10 days after it was circulated to the Senate.

Regarding the impact of a prohibition of synthetics in processing, it is true that many multi-ingredient processed food contains synthetics. These will be impacted by the Harvey ruling, and require a large number of products to be labeled "made with organic" ingredients, or to reformulate. It won't necessarily be harder to make organic TV dinners, but it will be required to labeled them as "made with organic ingredients" TV dinners- which might not be such a bad thing. Some consumer groups think this is a very good thing.

The organic industry claims this will reduce sales and devastate the market for organic, but according to OTA's own figures, in 2003 the combined sales of packaged food plus sauces/condiments and snack foods categories totals $2.039B, or 19.6% of total organic food sales. (2004 Manufacturers Survey) Although this is a substantial portion of the organic food market, it is not a majority of the marketplace, and it is likely that quite a good percentage of these products will be able to figure out ways to reformulate with natural additives, and that adjustments to the National List can be made on a number of substances now listed as synthetic that are in fact available in natural or organic forms.

OTA has also been repeating some misinformation - that baking soda is synthetic (it is not, it is on the list at 205.605(a) as natural), that all pectin will be ruled out (high methoxy pectin is natural) and that processors must relabel without the USDA seal by the end of 2005 ( not true - they have until June 2007.)

While it is possible there does need to be a change to OFPA to define and limit the types of synthetics allowed in organic processing, there has been no public discussion of the strategy to do this, nor an attempt to consider mitigation of the problem through regulation change. As OTA has noted in the summary they sent to Congress (still not public) , the original intention of Congress was to limit and control the number of synthetics allowed in organic production. This is reflected in the limited categories allowed in crop and livestock production, (copper, sulfur, vitamins, minerals etc) . OTA's proposal does not "control" the use of synthetics in processing, it is a wide open allowance with no restriction on categories, and no criteria for evaluation (those that are currently in use have been struck down by the Harvey suit.)

The OTA language also needs close vetting as there are a number of other consequences, such as lack of inclusion of processing aids, and a completely vague and unrestricted process proposed for determination of commercial availability.

The proposed OTA "fix" on dairy feed allows for 3rd year transitional feed to be feed to animals in conversion, which is a long time NOSB recommendation and in the current NOP rule. It is arguable whether a law change is needed to restore this provision. It does not address the critical issues of dairy herd replacement animals. It is likely that USDA will remove the requirement that "once entire distinct dairy herd has been converted to organic.. . all animals must be under organic management from the last third of gestation" since it is connected in the regulation to the allowance of the 80/20 feed exemption that was overturned by Harvey. This means young animals could be managed conventionally for the first year of life, including the use of antibiotics before conversion on an ongoing basis. If the OFPA is to be changed, this should be on the table.

Organic farmers have put up with a steady raising of the bar on organic standards - such as the requirement for organic seed, organic transplants, 100% organic feed, no list 3 inerts, strict composting standards, no transitioning slaughter stock, no pressure treated wood in contact with crops….the list goes on and on. It is understandable that processors need to have stability in the regulations, but at this point, to open OFPA and add synthetics in processing with no restrictions, with a lack of criteria, and vague allowances for "emergency" non organic ingredients is a step backward, and could undermine consumer confidence in the label.

A working group organized by the National Campaign for Sustainable Agriculture made a good faith attempts made to date to avoid this so called "cut off your nose" situation. This included some members the NCSA Organic Steering Committee, RAFI, CFS, National Organic Coalition, Beyond Pesticides, Consumers Union, National Cooperative Grocers Association, and several others who invited OTA and the industry to come to the table to work out possible middle ground solutions. The hope was to find solutions could actually strengthen OFPA while addressing some of the critical impacts of the Harvey decision. However, repeated efforts at communication and compromise were rebuffed, finally after a 5 hour meeting on Sept 15 in Washington. Although productive discussion and many points of common ground were established, OTA chose not to come back to the table and went forward with its proposal to the Senate unchanged.

The organic community has a lot of clout with Congress when unified, it is too bad that these issues could not have been addressed in a more inclusive and public manner to avoid this type of division. Quite a few people tried hard.

Emily Brown Rosen
Organic Research Asociates
OTA Member, and co-author of the 1999 OTA American Organic Standards
NOFA NJ Board of Directors
Midwest Organic Services Association Advisory Council
Pennsylvania Certified Organic staff


Grace Gershuny wrote:

I'm pasting in below the Organic Trade
Association's action alert on the same subject
but opposite position as that circulated by the
Organic Consumers Association (OCA). Most of
OCA's statements are flat out lies, and if the
results of the Harvey lawsuit are allowed to
stand there will be a dramatic loss of markets
for organic farmers, as well as products
available to organic consumers. Talk about
reversing 35 years of effort by the organic
community--OCA's position is a classic case of
trying to cut off your nose to spite your
face. Check out the factual information
presented by OTA and decide for yourself.

Thanks for listening,

Grace Gershuny

P.S. I have been working as a consultant to OTA
for the past year or so, most recently in helping
its members with various strategies to mitigate
the damage done by Harvey. But I am writing this
on my own nickel, as a longtime organic advocate,
author, grower, teacher, and, yes, former NOP staff member.

Action Alert from the Organic Trade Association

Sept. 19, 2005

This News Flash includes a summary of OTA's
proposal to Congress. The OTA Board of Directors
has given its unanimous support. If you receive
inquiries about this issue from your customers,
please use the information OTA is providing in
this News Flash to clarify any misperceptions or misunderstandings.

OTA's stance: The Organic Trade Association
Supports a Return to the Status Quo and Requests
that Congress Act after June 2005 Court Ruling.

Key Points

* The federal rules authorizing the use of
the USDA Organic seal on food products are five
years old, and are the touchstone of mainstream consumer acceptance of organic products.
* The current organic rules are the result of
adoption by USDA of recommendations from a
citizen advisory board created by Congress and 10
years of notice and comment rulemaking based on those recommendations.
* As might be expected with a new federal
program as comprehensive as the nearly 500-page
organic rule, certain parts of the rules were
found to be inconsistent with the statute.

The June 2005 Court Ruling Threatens the Booming Organic Market
* The June 2005 court ruling impacted three parts of the federal rules.
* First, it effectively blocked the common
use of harmless substances like baking soda,
pectin, ascorbic acid, vitamins and minerals,
etc., the so-called "allowed synthetics" in
processed food products bearing the USDA Organic seal.
* Second, it required the rules relied upon
by small dairy farms transitioning to organic
management practices be revised, with the
unintended result that making the change will be
significantly more costly after the ruling.
* Third, it disallowed the procedure
implemented by the Secretary's organic certifying
agents for recognizing the commercial
unavailability of organic agricultural products.

The Court Preserved the Status Quo for One Year=20
to Allow Congress to Remedy the Problem

* To avoid consumer confusion and market
disruption, the Court declined to immediately
vacate the rules to allow Congress to consider its ruling.
* Due to crop cycles and the lead time
necessary for product formulation, labeling, and marketing of organic products to consumers,
legislative clarification must be immediate.
* The businesses that produce and market the
majority of America's certified organic farm
products will have to drop product lines or
re-label them without the USDA seal by the end of 2005.
* Some have estimated that up to 90% of the
multi-ingredient products that today bear the
USDA Organic seal will have to be removed or
relabeled without using the USDA seal.
* To compensate for the lower value consumers
place on products not "organic enough" to carry
the USDA seal, some companies may reformulate
with less organic content or discontinue certain product lines.

The Solution is to Clarify the Organic Foods Production Act of 1990
* It is critical that Congress seize the
opportunity created by the Court and act before the end of the year.
* The necessary clarifications will stabilize
the marketplace for farmers, and businesses that
contract with farmers for organic agricultural
commodities, and do nothing more than restore the
status quo -- an interpretation of the statute by
the citizen advisory board that was created by
Congress to advise the Secretary on organic matters.

Emily Brown Rosen
Organic Research Associates, LLC
P.O. Box 5
Titusville NJ 08560
fax: 609-737-6652

9/21/2005 08:29:00 AM  
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