Murky Water

From the time that Congress passed the Organic Food Production Act (OFPA) in 1990 to the present, hot-button issues have persisted. There was a brief honeymoon phase following the national implementation of the standards in October 2002, but it was a short afterglow.

Many of you will recall that three months later, in February 2003, a stealth rider bill was found to have been added to the massive 2003 Omnibus Appropriations bill and became law. The rider provided that if organic feed costs exceeded conventional by 200 percent, organic livestock producers could be exempted from the 100 percent organic feed provision. Left intact, the exemption would have seriously undercut organic integrity and consumer confidence in the fledgling National Organic Program (NOP).

Fortunately, there was a massive blowback of outrage, resulting in gaining significant bipartisan congressional support, and it was repealed less than two months later. How was the repeal accomplished so quickly? Why, through the same means, of course—albeit in a just cause this time—by Senator Leahy, who inserted a repeal rider into yet another bill, one specifically being fast-tracked: the supplemental appropriations bill to fund the war in Iraq.
 

Stevens declares wild fish “organic”

At the same time that Senator Leahy added the repeal language to protect organic integrity, Senator Ted Stevens, (R-Alaska), chair of the Senate Appropriations Committee, also had a rider to attach. His was created specifically to amend the original organic act, OFPA (7 U.S.C. 6506, specifically section (c), stating:

"WILD SEAFOOD (1) Notwithstanding the requirements of Section 21-7(a)(1)(A) requiring products to be produced only on certified organic farms, the Secretary shall allow, through regulations promulgated after public notice and opportunity for public comment, wild seafood to be certified as organic."

Senator Stevens had for years maintained that Alaskan wild salmon was uniquely qualified to receive USDA certified organic status, and he was, frankly, not used to being successful in his endeavors.

The National Organic Standards Board (NOSB) formed an Aquatic Animals Task Force in June 2000, partially responding to his persistent pressures and to gain a better overview of the broad picture. The task force included several NOSB members plus a wide range of stakeholders. Their report in May 2001 was received by the full NOSB at its October 2001 public meeting. There were two basic recommendations issued, one in favor of developing proposed standards for certification of aquaculture production, and the other recommending the prohibition of developing standards for the certification of wild-harvested aquatic animals. (Read the full report on the National Organic Program website: www.ams.usda.gov/nosb/
FinalRecommendations/Oct01/AquaticTaskForce.html.
 

Leahy calls for input

Diplomacy and negotiation by Senator Leahy made sure that the OFPA amendment rider inserted by Senator Stevens would still provide opportunity for full public and NOSB participation in the standards-setting process that the new rider mandated. It states:

"(2) CONSULTATION AND ACCOMMODATION—In carrying out paragraph (1), the Secretary shall (A) consult with (i) the Secretary of Commerce, (ii) the National Organic Standards Board established under section 2119, (iii) producers, processors, and sellers; and (iv) other interested members of the public; and (B) to the maximum extent practicable, accommodate the unique characteristics of the industries in the United States that harvest and process wild seafood [emphasis added]."

Such are the ways of politics.

In May of 2002, following the Aquatic Animals Task Force report, the NOP issued a “Scope” document addressing the increasing questions raised about eligibility of many emerging products. It included “aquatic animals” and stated:

"Because these and other products, classes of products, and production systems contain agricultural products, the producers and handlers of such products, classes of products, and production systems are eligible to seek certification under the NOP."

This was viewed as a virtual green light, and even in the absence of specifically tailored and published and approved USDA standards, several companies sought and received certification or were well on their way, including various shrimp and tilapia fish operations.

However, two years later, on April 13, 2004, a revised NOP Scope document (which stated it superseded that of May 2, 2002) addressed the same list of products and systems as in the earlier Scope, including this:

"Fish and seafood, farm-raised or wild-caught: Although OFPA provided coverage for aquatic organic standards, NOP has not developed any standards regarding their use in certified organic operations."

Further on it said:

"The products may not display the USDA organic seal and may not imply that they are produced or handled to the USDA NOP standards. Consumers should be aware that the use of labeling terms such as '100% organic,' 'organic,' or 'made with organic ingredients' on these products may be truthful statements. But these statements do not imply that the product was produced in accordance with the USDA NOP standards nor that the producer is certified under the NOP standards.

"Operations producing the products listed above that use labeling or other market information that implies or states that the products are in compliance with the USDA NOP standards, or products that carry the USDA seal, have until October 21, 2005, to use existing supplies of labels and packaging. Failure to comply with this requirement may result in an enforcement action."
 

Orders rescinded

After NOSB and public pressure, the entire April 2004 Scope (as well as three other confusing and troublesome documents issued in April 2004) were ordered “rescinded” by Secretary Veneman in May of 2004. Both the 2002 Scope and 2004 documents have vanished from the National Organic Program website. However, the NOP has stated that they consider the statements in the documents accurate, even if the “process” or lack thereof (neither consulting with NOSB nor seeking public input) was inappropriate.

The NOSB Livestock Committee has recommended the establishment of a new task force on standards for wild-caught and farmed aquatic animals. The task force will be structured similarly to the earlier task force on Aquatic Animals, with two working groups—one addressing wild-caught and one for farmed species. These working groups are to develop recommendations for consideration by the full task force, which in turn will issue recommendations to the NOSB.
 

Call for task force participation

On January 24, 2005, the USDA published a notice in the Federal Register (Vol. 70, No. 14) calling for nominations for participation on the Task Force on Aquatic Animals (as well as a similar task force to address standards for organic pet foods). The notice is posted at www.ams.usda.gov/nop/TodaysNews.html

According to the Federal Register notice, “Each task force will be expected to present its completed proposed standards at the October-November 2005 NOSB meeting to be held in Washington, D.C.” This is an extremely ambitious, fast-track timeline. Meanwhile, the sale of imported “organic” salmon and other seafood, certified to various standards of groups such as The Soil Association in the U.K., are, in the view of the legal advisors to the NOP, permitted so long as no claim is made that it is USDA certified, and so long as the USDA has no specific standards for the product.

What about producers who received USDA certification in the two-year period from May 2, 2002 to April 13, 2004? They are in limbo. It’s unclear whether the “rescinded” April 13 document giving them until October 21, 2005, to use up labels still stands. Many co-op grocers no doubt have some of the affected products on their shelves at this time, some labeled organic and some with the USDA seal.

It is also likely it’s not coincidental that the USDA has fast-tracked the reports from both task forces to be “expected” at the October or November NOSB meeting.

*** Goldie Caughlan is nutrition education manager at PCC Natural Markets in Seattle and a former member of the USDA National Organic Standards board ([email protected]).