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Organics Under Attack

By Ed Maltby, NODPA Executive Director

The integrity of the USDA Organic program is currently in a precarious position. It is under attack from Congress, the NOP, and from organic advocates. The organic dairy pay price, and subsequently family farm income, is collapsing under the strain of a surplus brought on by poor supply management by milk buyers, poor implementation of existing regulation by the NOP and certifiers, and the failure of the NOP to pass regulations to uphold the integrity of the organic standards. The unique process of organic certification that has held consumer confidence and allowed organic products to stand out in the marketplace is also under attack and the results could well be more long-term and devastating than a drop in pay price.

The threats come from three distinct areas: the 2018 Farm Bill; from the bureaucratic inertia at the NOP; and by single-issue organic advocates who are looking to bypass the established process and change regulations through Congressional action. This article will explore how and why these areas of threat are so important because the defense of organic integrity and the changes to Federal regulations happen in many different ways and we all need to understand how an action in one area will affect a possible solution in another.

Threats to Organic: The Farm Bill

Negotiation has begun for the 2018 Farm Bill. Every four years, Congress goes through a somewhat archaic process of having a Farm Bill. It’s archaic because over 80% of the Farm Bill deals with anti-poverty spending and a significant part deals with funding of mandatory programs. It usually makes amendments and suspensions to regulations; reauthorizes, amends, or repeals provisions of temporary agricultural Acts; and puts forth new policy provisions for a limited time into the future. The Farm Bill also draws attention to the policy preferences of individual lawmakers and their ability to redirect funding over the next four years. It allows for the introduction of amendments to existing laws from highly organized and well-funded lobbying groups while at the same time opening the door for hundreds of advocates to introduce and promote their own priorities. For example, in the last Farm Bill, the Organic Trade Association (OTA) employed an influential lobbying firm to introduce and pass, with a bi-partisan vote in a divided Congress, an amendment to the Commodity Promotion, Research, and Information Act of 1996 that allowed for an organic check-off to be formed.

The Farm Bill process can be completed quickly in a year or can stretch over a couple of years, depending on priorities in Congress. Some have predicted that the 2018 Farm Bill may become a priority since it will be easier to pass than other bills in our current highly partisan government. The 2018 Farm Bill process has started with hearings around the country, with presentations mostly from conventional agriculture and attacks on organic regulations. An example of one of the most vocal attacks is coming from Senator Pat Roberts (Republican – Kansas), who chairs the Senate Ag Committee and controls the Farm Bill process in the Senate. He is attacking the National Organic Standards Board (NOSB) which, despite its failings, is unique to the organic sector because it ensures that all stakeholders with an interest in organic food and farming have equal access and input into the USDA process for setting organic standards. On July 13, 2017, the Senate Ag Committee held a hearing focused on organic agriculture and specialty crops. In his opening statement during this hearing, Chairman Roberts declared that the National Organic Standards Board (NOSB) and organic regulations were “plagued by uncertainty and dysfunction.” “These problems create an unreliable regulatory environment and prevent farmers that choose organics from utilizing advancements in technology and operating their businesses in an efficient and effective manner,” Roberts stated. His anti-NOSB statement is misinformed and dangerous, but will distract from and make more difficult funding for core organic programs like organic research, the Environmental Quality Incentives Program (EQIP) and Conservation Stewardship Program (CSP), Organic Crop Insurance, Organic Production and Market Data Initiative, and cost-share.

The House Ag Committee Chairman, Congressman Mike Conaway, has also been antagonistic toward organic programs and the NOSB, including at a House Agriculture Committee hearing on specialty crops. With the chairs of both House and Senate Agriculture committees openly questioning the regulatory process of the Organic Foods Production Act (OFPA or Act) it seems likely that they may want to use the Farm Bill as a vehicle to make significant changes to the Act. These changes would take place without the input of the organic community or any stakeholders. If large scale changes are made to OFPA, for example changing the make-up of the NOSB, many believe that Congress and lobbyists will use the opportunity to introduce amendments that will undermine the high standards necessary to maintain organic integrity and the transparency in defining organic standards. This will directly affect the trust of consumers and ultimately the pay price for producers. The organic label is already threatened by large scale operations that are advocating for lower standards to increase low cost supply and access to a larger market share, and this could further undermine its integrity.

Threats to Organic: Trump Administration

The Trump Administration’s attitude to organic certification remains relatively unknown but there are a number of indicators. The Trump budget cut the NOP by three staff positions; the Origin of Livestock Final Rule is no longer a priority for 2017-2018; the Animal Welfare Rule implementation has been postponed; and very few appointments have been made to the next tier of Administrators and Under Secretaries at USDA. It is also concerning that on a webinar on hydroponics on August 14th, Miles McEvoy, the head of the NOP, suggested that organic regulations are flexible enough to certify products for which there are no standards, which directly contradicts one of the purposes specified in the OFPA. (The Act states: §6501. Purposes…….. (2) To assure consumers that organically produced products meet a consistent standard.) This attitude will undermine confidence that the NOP will implement changes recommended by the NOSB, especially with hydroponics.

Threat to Organic: Riders to Bills

A rider is an additional provision added to a bill or other measure under the consideration by a legislature, which has little connection with the subject matter of the bill. A rider often results in the measures getting less scrutiny and enables their sponsors to avoid responsibility for pushing them through. A current example is where riders have been added to the Appropriation legislation to allow the EPA to bypass existing regulation. For example, the House Interior and Environment Appropriation (Sec. 434) would prohibit EPA from writing any rule that would require the largest industrial animal farms (Concentrated Animal Feeding Operations, or CAFOs) to properly store, transport, or dispose of their wastes. It is feared that large scale organic porch poultry operations and conventional poultry operations could use this process to change the access to pasture requirements of the Livestock and Poultry Practices Final Rule. It is also feared that the Coalition for Sustainable Organics, which represents growers in favor of organic hydroponics and has a considerable presence in DC, could use riders AND the opening up of OFPA to push their agenda. The growers in favor of using antibiotics in organic tree fruit are also well organized for similar action to achieve their particular goals.

What are the best ways to achieve change? Using USDA administrative measures or Opening OFPA?

USDA Administrative Measures to achieve change:

The NOP has many challenges, and on many levels, when it comes to maintaining the integrity of the organic program, such as preserving the role of the NOSB; enforcement of regulations; and publishing regulations that keep pace with the rapidly changing marketplace for organic products. Here is a summary of the different ways to obtain change by administrative measure:

  • Through recommendation from the NOSB to the NOP to the Secretary of Agriculture.

    The role of the NOSB is to ensure that all stakeholders with an interest in organic food and farming have equal access and input into the USDA process for setting organic standards. This is done at open public meetings, by written comment, by public testimony and detailed work within committees. This transparency has two effects. It allows for well-informed recommendations that reflect the practicality of implementing change into production methods. The transparency of the process also gives consumers the confidence to know that the integrity of the organic label is being preserved. Unfortunately, publishing regulations from NOSB recommendations can take decades depending on the political will of the administration, the skill of the drafter of the regulation and the ability of the regulatory language to satisfy the requirements of federal regulations. The USDA as an institution does not appreciate the powers of the NOSB. All administrations have sought to restrict the power of the NOSB and control their work plan and agenda, with many complaints about it being unwieldy and unscientific.

  • Guidance documents and training by the NOP of their certifiers on how to interpret and implement the regulations to ensure consistency and a level playing for all certified operations.

    Guidance documents can be used to act quickly to address identified problems from the certification process. The training sessions can ensure that all certifiers follow the same interpretations of the regulations when they implement them. Mandatory attendance at the training session can also be used to educate those certifiers who have been issued a noncompliance from the NOP.

    Unfortunately, guidance documents do not hold the force of law and are routinely ignored by certifiers and certified operations. NOP actions against a certifier are routinely challenged and take many years for enforcement to be implemented. During that time, the certifier and the operations certified by them can continue to operate as if they are certified.

  • Administrative actions by the NOP

    These actions usually occur after media controversy, where there’s blatant disregard of the regulations, from an Inspector General report, or when certifiers are implementing regulations differently, as are occurring with the origin of livestock and hydroponics. Some examples of administrative action are the measures implemented by the NOP to increase the effectiveness of tracking imported organic grain. If the NOP wanted to follow the European Union decision to change to electronic certificates for imports to ensure easier trace back verification they could do that by administrative action. The NOP can standardize organic certificates, especially important with the tracking of organic livestock. Hopefully, the organic community has been working with the NOP on different solutions to problems before administrative action is taken, as is the case with the blatant abuses with some organic imports. The solutions might then have been discussed by the NOSB or at some of the regular meetings that advocacy groups have with USDA.

  • By Report Language in Bills

    When the Senate or House Appropriations Committee reports an appropriations bill to the full Senate or House, respectively, they typically publishes a committee report explaining the bill. These reports contain more detailed guidance to departments and agencies than is provided in the accompanying bill — generally referred to as “report language.” Similar guidance is also provided in the managers’ joint explanatory statement (or managers’ statement) that accompanies a conference report. Significantly, report language and managers’ statements do not have statutory force; departments and agencies are not legally bound by them. For example, the report language in the Senate Agricultural Appropriation committee in July 2017 addresses the abuse in organic certification: “The Committee strongly encourages USDA to focus resources for NOP on robust oversight of domestic and international operations that carry the USDA organic seal in light of recent news reports that have shed light on inadequate enforcement of the standards.” These statements about how to use appropriated money are added by sub-committee staff and may not survive to the final bill at the request of legislators. The organic community has used these in the past to attempt to influence USDA’s use of grant money for research, to increase the amount of money spent on enforcement and provide reports to the committee on progress of these actions. These statements are usually part of the bargaining process of what ends up in any final bill. They have to survive the conference committee where the Senate and House Bill are combined. Their effectiveness is marginal except if they are adopted by the administration, enforced by the agencies or championed by influential members of Congress. In 2017, there is some doubt that there will be a new budget and we will be left with a continuing resolution that continues the funding and priorities from previous years.

  • Inspector General reports can be a useful tool to ensure enforcement of regulations.

    These reports are usually started after complaints from the trade, members of the public or more usually by members of Congress. One particular report on organic dairy conducted in 2012 analyzed the compliance side of hauling organic milk and, as a result, the NOP had to make recommendations to correct the areas identified as inadequate by the report. This has brought changes at the NOP and more transparency in identifying organically certified operations. The recommendations on ensuring the integrity of organic milk was finalized in 2014 with a Guidance document entitled “Certification Requirements for Handling Unpackaged Organic Products.”

Achieving Change by opening OFPA (aka, The Act)

Changing the legislation that has formed the basis of organic certification, OFPA, to mandate changes to regulation is always an option and has been done occasionally without having any impact on the totality of the Act and integrity of organic. But anytime the Act is opened, especially when there is a hostile administration, there is the possibility that some drastic changes could be made. In 2017, we are faced with a hostile Congress and well-financed groups within the organic sector that are focused on single issues.

If, or more likely when, the Senate recommends changes in the OFPA in order to make modifications to the structure, governance and power of the NOSB it will be looking for support from the industry to justify its actions. They will get support from the USDA because, historically, the USDA has attempted to rein in the powers of the NOSB. The support the Senate gets from the organic industry will depend on what it can offer them. It is more than likely that the powerful poultry lobby will support the opening of OFPA and use it to change the animal welfare poultry requirements. Groups in the West might be keen to use the opening of OFPA to address the different regional needs of growers, especially when dealing with the loss of what they regard as valuable production tools, for example, antibiotics in tree fruit. There also appears to be a regional division emerging over the issue of whether hydroponics and/or containerized production should be allowed in organic, with Eastern and Midwestern organic producers largely being opposed or skeptical, and Western organic interests being more open to the idea. Some of this may relate to the scale of operations enabled by hydroponic/containerized production, and some of it may be related to water shortages in the West, and the perception that hydroponics and containerized production methods are better at conserving water. The Coalition for Sustainable Organics will undoubtedly use the situation to obtain organic status for hydroponics. I can only imagine other well-financed groups, like organic milk CAFO’s, will use the opening of OFPA to make changes to the definition of access to pasture. For those in favor of opening up OFPA to solve an individual issue, there is immense danger that those in control of the process will implement their own agenda and undermine organic integrity for scientific (as defined by the federal government) and commercial reasons.

How does this directly affect Organic Dairy?

To understand the implications for Organic Dairy, take for example, the one-time transition for dairy. Theoretically, it would be relatively easy to end the one time transition for dairy if the OFPA was modified since dairy is the only form of livestock that has that provision. All other livestock have to be organic from birth, with increases in the number of organic animals occurring through conventional breeding stock. Making this change by amending OFPA is unfortunately, the quickest and easiest way. The NOP has effectively blocked the ten years of work done by the NOSB; by NOP staff; and by the organic community with comment on Proposed Rules by closing it for comment and not presenting it for Final Rulemaking. As illustrated above, opening up OFPA for this one issue, or adding it to a number of issues Congress is looking at, could be counterproductive because those with more influence might change the provision to continuous transition as we currently have in some areas and/or weakening the access to pasture standards.

What can we do now?

We need to approach change by being strategic and using all the tools available. Enforcement will come down to political will and an expansion of the NOP budget, with more money allocated for auditing of certifiers and enforcement of regulations.

The NOSB is in no way perfect but we should continue to support its continued existence as currently defined in OFPA. If the NOSB became just an advisory body to the Secretary of Agriculture, without its current powers, or a haven for large scale production, all the recommendations would be dictated by Big Organic Ag. This is very similar to how all the other committees work at the USDA.

Recently, we have been successful in working with the media and via legal routes. The media has shown a heightened interest in organic dairy and organic imports, and will continue to inform the public. Our recent interaction with the Department of Justice, partnering with the work that Cornucopia had done, brought us success in keeping a third buyer for organic milk in order to maintain some future leverage on pay price. Currently, we are part of a lawsuit to maintain the independence of the NOSB, and we are assisting organic groups and individuals that are taking legal action to preserve their markets.

As we move into a very uncertain political season we need to be aware of all the different tactics and actions that are available to us to preserve the organic market and an adequate pay price. The reality is that organic dairy is just one part of the organic industry and the producer voice unfortunately is very limited by a lack of resources. By building strategic partnerships and investing time and money to support our priorities we can be part of the process to maintain the integrity of the organic label and our market place. By working together we can ensure that neither Congress nor Big Organic Ag can devalue the work and investment of the past thirty plus years. When the glut of organic milk finally subsides we need to be in a good position to reestablish a thriving organic dairy market that pays a fair price to producers.