Updated on Jan. 1, 2018.
Ongoing legal battles over the laws governing the USDA Organic label could be cause for concern among consumers paying a premium price for organic produce, meat and eggs.
These recent developments highlight the growing influence “big organic” is having on the way organic produce is cultivated and farm animals are raised.
To carry the USDA Organic label, a grower must go through a certification process and routine inspections and adhere to strict rules and guidelines.
What consumers might not know is that those rules and guidelines are subject to change and might not encompass all the aspects of food production they envision when they see “organic” printed on a product.
Areas currently in flux include animal welfare rules for poultry and egg production, the list of synthetic chemicals allowed in organic production, and the use of chemically contaminated compost and manure in organic farming.
“A lot of the major food corporations are moving as quickly as they can into the organic sector, if they haven’t already,” George Kimbrell, legal director at Center for Food Safety, told fellow attorneys at a University of Oregon School of Law conference in March.
At a panel discussion about the legal battles over organic labels, he explained that large parent companies overseeing their offshoot organic brands often have a different perspective than traditional organic farmers.
In some cases, large-scale egg and meat producers replaced GMO feed with organic feed and stopped using hormones and antibiotics, but otherwise kept their factory-farm production methods in place and slapped an organic label on it.
The spirit of organic was birthed out of the movement sparked by Rachel Carson’s 1962 book, “Silent Spring,” about the synthetic pesticide DDT. Organic was built on an ethos of sustainable, regenerative farming that food safety advocates think some larger organic producers are failing to fully embrace.
Oregon has a long history of organic farming, leading the way in 1973 when it became the first state to implement organic certification.
By 1990, 22 states had established their own certifications. That same year, the Organic Food Production Act created the National Organics Standards Board to advise the USDA on organic policy to be regulated by the National Organic Program.
But establishing just what that USDA Organic label would mean was a long and arduous process. It took 10 years for the board to hash out the standards that would govern the label, and even today seafood is excluded and rules regarding animal welfare are sparse.
The USDA Organic label was designed with a strong public component in place, with any new rules subject to a transparent public process.
“The first proposed rules in 1997 shocked a lot of people because they would have allowed in organic the use of genetic engineering, irradiation and sewage sludge as fertilizer,” Kimbrell said.
Those initial proposed rules resulted in 275,000 public comments. In the end, the label prohibited all three of those practices.
Kimbrell and attorney Amy van Saun have been working out of the Center for Food Safety’s Portland office on several cases aimed at maintaining transparency in the USDA Organic label.
The nonprofit law firm and sustainable-food advocacy group is based in Washington, D.C., with offices in San Francisco and Honolulu, as well.
“People should be concerned about the integrity of organic, and we need to be watchdogging and making sure that USDA isn’t bowing to big organic and letting them bend the rules and get away from what it’s really meant to be,” van Saun told Street Roots.
Does organic mean humane treatment of animals?
In 2017, a Consumer Reports survey found 86 percent of regular organic consumers want animal products from farms that treat animals humanely.
While standards for pasture-raising ruminant animals such as cows and sheep have been implemented under the organic label, living-condition requirements for poultry, eggs and pork are absent.
That was supposed to change for poultry in May when a new set of rules requiring real outdoor access for birds and limits on overcrowding would have taken effect.
The rules were approved the day before the Trump administration took power, but the president’s executive order freezing new regulations has delayed implementation.
While the majority of U.S. producers are fine with the new rules and are already adhering to them, van Saun said, there are a handful of “bad actors” producing organic eggs with industrial-model infrastructures that don’t want to change.
“It’s a small number of producers,” she said, “but because they are massive, they do produce a fair amount of eggs that are labeled organic.”
The USDA considers less than 1 percent of producers to be “large,” but they are responsible for 25 percent of all organic egg production.
A Cornucopia Institute investigation found that Cal-Maine and Herbruck’s Poultry were among the largest egg producers to oppose the new rules requiring outdoor access and limits on population density in organic eggs and poultry.
Both of these companies sell eggs under several brands, including Eggland’s Best. They also sell eggs to store-brand organic labels such as Safeway (O Organics), Kroger (Fred Meyer’s Simple Truth Organic) and Trader Joe’s.
“When people think organic, they don’t think of three birds crowded into one square foot of space or no outdoor access for chickens and poultry,” van Saun said.
She said that while the rules are now slated to go into effect in Nov., 2017, she isn’t sure if it will happen without more pushing from the public or additional litigation.
UPDATE Jan. 1, 2018: After delaying the implementation of the new animal welfare rules three times, the USDA has officially proposed withdrawing them completely from the National Organic Program.
Connie Karr, the certification director at Oregon Tilth, said her organization is strongly supportive of these new animal welfare standards and that most operations in Oregon are already following the new guidelines. She said, in Aug. 2017, that the delay is unfortunate. “It’s a real bureaucratic mess right now,” she said.
Oregon Tilth is the third-largest organic certifier in the U.S., and it certifies organic growers across the nation and advocates on their behalf. Karr said that in Oregon, while there are some mid-sized to large producers, the majority are “the smaller, family-sized farms.”
While the new rules will make conditions for birds better than the status quo, there are additional issues around poultry the Center for Food Safety would like to see addressed.
For example, there are no organic hatcheries where producers can get non-commercial chicks. This means that the same breed of bird that’s been bred to grow fast in confinement with enlarged breasts – a breed that doesn’t do well outdoors – is the same breed organic farmers often purchase.
Additionally, hatcheries typically trim chicks’ beaks and inject them with vaccines and other drugs. The organic label provides for this “first day of life” exemption from organic rules, but advocates say organic hatcheries are needed for organic poultry and egg producers.
Pigs, however, are not included in any past or present proposed organic rules for animal welfare. Pigs are one of the most intelligent animals in the world, ranking somewhere between the fourth and 10th smartest, depending on the source.
“I think what people would want is for pigs to be able to engage in their natural behaviors,” van Saun said. “If sows are in gestation crates where they can’t move around much to keep them from biting each other or attacking or hurting each other because they are so overcrowded, that is a pretty terrible practice that a lot of people are rightfully upset about.”
However, a side effect of not being able to use antibiotics and hormones makes keeping overcrowded pigs in confinement more difficult.
“They rely on those drugs to be able to keep the animals from dying,” van Saun said. But her firm would like to see rules requiring access to outdoors and ample space to move around, like the poultry rules would require.
“Pigs are the last frontier,” she said.
There are animal welfare labels, such as Animal Welfare Approved and Certified Humane, that consumers can look to when seeking humanely raised food. However, because they are private labels, the inspection and certification process isn’t as transparent and reliable as the USDA Organic label.
But, van Saun said, she would choose a product with one of those labels over one without, and consumers can visit each label’s website to find out what producers have to do to earn their certification, including space required per animal, access to outdoors, and animal health and well-being.
What’s in the compost?
For five years starting in 2011, unbeknownst to consumers, pesticide-contaminated compost was allowed in organic farming.
An engineer and concerned citizen living in Banks, Ore., at the time, Rich Wallick, uncovered this quiet change in federal policy when he made a series of records requests.
Wallick had read about how some large organic food growers were using synthetic nitrogen fertilizers.
“It piqued my curiosity,” he said. It prompted him to seek documentation from various government agencies through the Freedom of Information Act to find out why this was happening.
In response, he was sent a document dump – more than 10,000 pages of mostly irrelevant information. But he found something else among the many pages, he said. It had to do with compost, which is crucial to organic farming.
In the earlier years of organic, most producers made their own compost. The idea of a sustainable, closed-looped system is one of the key principles behind organic production.
But as food-industry giants began to establish their own organic labels, they needed a compost source. That’s when yard waste compost largely entered the organic market. The only problem is that urban yard waste contains all sorts of synthetic chemicals that people apply to their lawns, trees and gardens.
In 2009, the California Department of Food and Agriculture discovered three compost products used to grow organic wheatgrass were contaminated with bifenthrin, a common household insecticide.
The Organic Food Production Act of 1990 specifically prohibits the use of: “Any fertilizer or composted plant and animal material that contains a synthetic substance not included on the National List of synthetic substances allowed for use in organic crop production.”
As a result, California banned those compost products for use in organic farming. The USDA initially agreed. But according to attorneys at the Center for Food Safety, that’s when some of the larger organic companies that were relying on yard waste compost interjected, arguing they needed this large-scale source of compost to operate.
Rather than conducting a formal rule change to allow for contaminated compost, which would have required public notice and an open public comment period, the USDA’s National Organic Program issued a guidance document that changed the definition of the word “contains” as it refers to synthetics.
This opened the door for use of contaminated fertilizers and compost in organic agriculture without notifying the public.
Through emails obtained in his records request, Wallick discovered this was an intentional attempt to change the rules behind closed doors.
One email he obtained, sent from an employee at organic giant Earthbound Farm to USDA Deputy Administrator Miles McEvoy after the contaminated compost was initially banned, stated:
“I get the need to have a policy, but this precedent is frightening. Once codified in policy, I’d have to expect that any time any prohibited material is found in any farm input – organic input included – in any amount, we’ll have to stop using that input until an acceptable amount is determined. Given the number of compounds we are likely to find once we seek them, we’ll be stopping early and often. … What happens when we find a contaminant is present for which there is no EPA tolerance in any food crop? Then there’s hormones and antibiotics in manure – these would no doubt be considered contaminants as well. Seek and ye shall find. … I’d prefer to see an interim policy that recognizes we live in an impure world and that organic production seeks to minimize those impurities in process and product.”
With the evidence collected by Wallick, van Saun and Kimbrell launched a legal challenge, along with Portland’s Crag Law Center, to disqualify the guidance document on the grounds that the USDA should have gone through the formal rule-change process and notified the public before allowing contaminated compost to be used.
In 2016, a judge agreed and overturned the policy, telling the USDA that a formal rule change would be needed.
That rule change proposal is expected this fall and van Saun urges organic consumers to weigh in with public comment if they don’t want their veggies grown with contaminated compost.
Karr at Oregon Tilth said that during the five years contaminated compost was allowed, tests of compost products Oregon growers were using came up clean.
According to Metro, Portland’s curbside composting program sends waste to third-party compost producers, such as Nature’s Needs in North Plains.
Nickolas Olheiser, Nature’s Needs organics manager, said some of the compost they produce from the urban curbside program ends up on organic farms in the Washington County area.
“Slim to no chance of pesticides being present in the finished material. Composting provides an optimal environment for deconstructing pesticides,” he said. “We also test everything before it leaves the facility for not just pesticides, but for pathogens, metals, nutritional content, etc.”
No synthetics, almost
There is a caveat to the ban on synthetics in organic farming. When farmers cannot access a synthetic-free organic-approved substance they need for pest control, soil improvement or other farming practice, the National Organic Standards Board can add a synthetic chemical to a list of exceptions known as the National List.
All items added to the list must go through a rigorous review process and show they will not significantly harm human health or the environment. There are currently 43 synthetics allowed in organic farming.
In the past, any synthetic that was added to the list would automatically drop off after five years unless the board voted to keep it on the list. But in 2013, the default was reversed. Now, anything added to list stays on indefinitely.
The Center for Food Safety and 12 other groups sued on the grounds that this change in the default setting should not have been made without public notice. That case is ongoing.
“Consumers would likely not be concerned about the majority of items of the (National List),” said Cameron Harsh, senior manager for organic and animal policy at Center for Food Safety.
However, he said, there are a few exceptions, such as DL-Methionine, a poultry feed additive containing amino acid concentrations. It’s used to promote high rates of weight gain in birds. But birds can get those same amino acids by eating insects, herbs or a wide variety of plants, which could be achieved if the birds foraged outdoors.
“Consumers may be disheartened to learn that the USDA often resists taking items off the (National List) for which organic alternatives now exist and are commercially available,” he said.
Karr at Oregon Tilth said that when items drop off the list suddenly, it can hurt producers who are relying on those substances.
“Farmers need tools in the toolbox, and especially organic farmers,” she said. “If you don’t have any controls or tools that you can use for fertility, for soil management, for disease management, pest management, it’s a hard mountain to climb.”
Portland attorney van Saun argues that because a mainstay of the Organic Food Production Act is that no synthetic substances are allowed, the default should be to take items off the list, not keep them on.
“But,” she said, “if this is an important substance that farmers or producers still need, then NOSB can vote to keep it on. It’s not like things drop off and no one has an ability to stop that.”
Email staff reporter Emily Green at emily@streetroots.org. Follow her on Twitter @greenwrites.