Harvey Case Tests National Organic Program

The “Harvey lawsuit” is first legal test of the National Organic Program (NOP). This article is intended as an editorial. It is my appeal to the organic business community to think deeply about the message we send as we address the lawsuit and changes it may bring to our organic community. In the eyes of the public, our integrity will be measured by our actions as well as our words.

For retailers and others, it is extremely important to be able to respond to consumer questions about the issue and to remember that the NOP is a young, rapidly growing program. It, like organic agriculture, is a constantly evolving process. The lawsuit and the responses it has evoked are significant examples of the public/private partnership the Program embodies.

“Boston: In the first legal test of USDA’s implementation of the National Organic Program to reach the federal courts, the First Circuit Court of Appeals ruled on January 26, 2005 that USDA had overstepped its authority in several important respects. Arthur Harvey, an organic blueberry grower, organic inspector, and consumer of organic foods, raised seven objections to the regulations passed by USDA to implement the National Organic Program.…The court ruled in Mr. Harvey’s favor on the three counts addressed by the friend of the court brief.”
—Press release from the Farmers Legal Action Group, 1/27/05

On March 30, 2005, Arthur Harvey received a requested “clarification” of the court decision in his suit against the USDA. His lawsuit was supported by several “friends of the court,” including the Rural Advancement Foundation International–USA, Beyond Pesticides, the Center for Food Safety, and Roseland Farm.* The court’s “clarification” stated that the prohibition of synthetics applied to products labeled “organic” and “100% organic” but did not apply to the “made with organic” category.

To date, little has been communicated to the public about the Harvey lawsuit, despite grave concern within the organic business community. The court’s decision, summarized below, could mean that some producers and handlers of organic products will either have to change their practices or change their labels. Many do not want such change. For others there would be no a change at all, since their products already comply with Organic Foods Production Act. Ultimately, the issue has the potential to shake organics right to its roots.

What remains to be seen is what members and stakeholders in the organic business world will do with this challenge and what message they will send with their response. The present is a time of pressure and opportunity that rivals the unveiling of the first organic rule in December 1997. How we survive will reflect our motivations and abilities as members of the organic business community, who benefit from those stakeholders in organics called consumers.

The Act and the Rule

In the beginning there was OFPA: The Organic Foods Production Act. The Act had the purpose of creating a consistent standard for what would be labeled and marketed as organic. The idea was that this would be good for trade and for consumers. After more than a decade of work, the organic Rule, CFR 205, was written, and the new world of USDA organics was born.

The market for these products has prospered, as have many of the players. What once served little more than a handful of direct markets mainstream has moved into the big-time of retail chains and corporate ownership. In 2005, it is difficult to find a consumer who has not heard the term “organic food.” Most have purchased it at one time of another. I have been served organic cookies on airlines and found U.S. organic produce, dairy, and canned products in groceries as far away as the Virgin Islands. It is difficult to find a consumer who does not have a perception of what “organic” means. But has the Rule met the goal and requirements of the OFPA? Is there a consistent standard? Does it meet consumers’ vision of what organic food is?

As a long-term member of the organic community, I have traveled to many a trade show, training session, conference, and meeting, taking me across the country and allowing me to meet thousands of people. Much of the work I’ve done has revolved around what these “consistent” organic standards should be. I’ve had conversations with folks from all walks of life about what organic food is in their view. The results are remarkably consistent—consumers believe that organic means that no synthetic chemicals are used and that organic livestock is fed organic feed, has access to the outdoors and space to roam. Historic and ongoing consumer expectations seem to parallel the issues at the heart of lawsuit, especially when one begins to consider the potential outcomes.

Since the Harvey ruling, there has been a lot of speculation on how the organic community would interpret and handle the impact of the decision. So far (writing in the first week of April), there has been guarded apprehension and some alarm about what this means and what to do. But, in my opinion, it gets down to only two choices: to follow the court’s decision that the Rule must conform to Organic Foods Production Act or to change the OFPA itself to fit the Rule.

First option: conform to OFPA

The court made three decisions with regard to the Rule’s conformance to the Organic Foods Production Act:
Decision 1: synthetics—Currently the Rule, as developed by the National Organic Program and National Organic Standards Board, allows synthetics that are on the National List of ingredients (Section 205.605(b)) approved for use in processed foods labeled as “organic.” The Organic Foods Production Action says otherwise, so the court is telling us this has to stop. But the question of what happens with this action is more complicated.

What do we do about all the companies who, in good faith, have been faithfully following the Rule and producing a multitude of organic products that are on the market yet have synthetics in them? How are they to conform with the OFPA? Options include relabeling of products from “organic” to “made with organic” or changing product ingredients to meet the requirements of the Act.

Decision 2: new herds—The second count of the lawsuit affects those converting “new herds” to organic dairy. The “new herd” clause in the Rule allows producers who are bringing an “entire distinct new herd” into organic production a one-time-only option to use up to 20 percent nonorganic feed in the first nine months of the12-month conversion period of the animal before it become “organic.” The court ruled that OFPA requires 100 percent organic feed and want the “new herd” clause gone. Some farmers who are already certified organic for dairy do not feel they would be affected by this, but many companies and producers entering the growing organic dairy market fear this will cripple growth. Their concern is that the cost for a farmer wishing to convert without benefit of the new herd clause will be so burdensome as to discourage industry growth.

Decision 3: “made with organic”—The third count of the lawsuit is about conventional agricultural products used in a processed product labeled “made with organic” ingredients. The court has made it clear that if an agricultural product is commercially available in organic form, that it must be used as opposed to a conventionally produced product.

Second option: change the Act to fit the Rule

If the Rule doesn’t fit, we can amend the Act, right? Some people feel this is the way to go—the way to “fix” the problems the lawsuit uncovered. But reopening OFPA could generate more amendments than just those that would “fix” the Act. Attempts have been made in the past to change it—fortunately these were thwarted by the organic community. Not so long ago, the percentage of organic feed was questioned—to this extent—for organic poultry. Senators Stevens from Alaska and Boxer from California have previously penned amendments to the Act. There are other people out there who would welcome the opportunity to legislatively alter what has been a popular and successful program.

Opening OFPA is an option, but one that must be given serious consideration. It may open a Pandora’s box. The organic world has changed much since 1990 when the Act was passed. Is the Rule so broken that we need to fix the Act rather than fix the Rule?

The Organic Trade Association has begun to survey its members about the financial impact such change would have on them. Several organic handlers offered public input at the recent National Organic Standards Board meeting stating that the synthetics must stay in these products. Others need to ask questions as well.
During my recent travels to meetings, farm conferences, and trade shows in Wisconsin, Illinois, Indiana, and the District of Columbia, I listened as many farmers raised questions about the lawsuit. Upon explanation of the decision, most farmers had the same response that most consumers have: there should be no synthetics used and use of 100 percent organic feed. Beyond this, farmers felt that any regulation requiring the use of a higher percentage of organic products in a processed product would be good for their markets. Those farmers who have concerns are those considering organic dairy. Some who never took advantage of the “new herd” clause feel it should never have been an option.

If the market-driven organic market is to grow, consumers’ opinions must count. What message do we send consumers if we tell them that their vision of organics is wrong and that we are going to fix things by having the Rule say we can add synthetics to organic foods and feed conventional feed to transitioning livestock? What are we saying to farmers who feel that all of the agricultural products in foods labeled with the word “organic” on the front panel should be organic?

It is time for serious soul searching. It is also time to make sure that we provide truthful information to the public as to what this all means. It is time, again, for them to be informed and empowered to make comment on how this will ultimately affect them and their choices in the marketplace. Rumors will continue to spread about this lawsuit, but this is a public issue and can be responsibly checked. Regardless of the growth and relative success we have enjoyed, we must view this moment as one of responsibility to the market that created us. The message we send to consumers today is the one that will shape the future organic label.

The Harvey case decisions provoke the National Organic Program and National Organic Standards Board to look at the Rule in a different light. There is work to be done on the National List, work with definitions so that we better understand what part a material plays in the production and handling of organic food, and consideration concerning fulfillment of the purpose of the Organic Foods Production Act. The Harvey ruling provokes certifiers to evaluate how they look at compliance and whether or not they view it the same way as one another. Most importantly, it provokes a large and successful industry to question its motivations and its public credibility. It remains to be seen whether this can be done in a way that truly reflects the needs of those who pay for organic food as well as those who make money from its sales.

*** Cissy Bowman is an organic certifier and manages Hoosier Organic Marketing Education, a nonprofit organization (317-539-4317 or [email protected]).