'Organic' Label Rules Attacked by Watchdog Groups

The average consumer faces a bewildering array of food labels and symbols in the grocery store aisle. Some of these are sanctioned or overseen by government regulators. Some bear the mark of voluntary, industry-led initiatives. Some come from third-party groups. Others occupy a gray area, making marketing claims that sound good but sometimes mean very little.

But among all the confusion, one status has become a kind of gold standard: the Department of Agriculture’s “organic” label, with its iconic green and white symbol. Shoppers, who for any number of reasons might want to avoid genetically modified ingredients, can be assured that products with organic labels were produced without them, because the law limits them. Or they can be assured that synthetic pesticides weren’t used, or that certain soil conserving methods were.

The label’s reputation, though, has come under increasing attack as a handful of consumer groups question the USDA’s handling of the National Organic Standards Board. The board, among other things, is charged with reviewing synthetic materials — from food ingredients to pesticides to cleaning agents — that are allowed in organic agriculture and production. Those materials get reviewed every five years so the board can decide if they should stay on the National List of Allowed and Prohibited Substances, or “The National List.”

Over the past several years, some watchdog organizations, notably the Wisconsin-based Cornucopia Institute, have criticized the agency for tweaking procedural rules and “stacking” the board with members Cornucopia perceives as lenient and more inclined to allow synthetic substances in organic production.

But champions of the label say the criticism has prompted yet more confusion among consumers and could dilute a symbol that, even with the disputes, means what it says.

“It leaves everyone wondering about the value of the label,” said Kathleen Merrigan, a former deputy secretary of Agriculture, who was a principal author of the law and served on the board for five years. “There’s nothing in our system that has more safeguards, that has more rules and prescriptions.”

Balancing the Board

The law requires the board’s members include four organic farmers who own or operate their own farms. Cornucopia says two of those now on the board represent large agribusinesses.

“If the spirit and letter of the organic law had been respected,” said Mark Kastel, the institute’s director, the Organic Standards Board “would be comprised of four farmers, three environmentalists/conservationists, two public interest/consumer representatives, two handlers/food processors, a scientist, a retailer, and an organic certifier.”

“Out of these 15 members, only two could be representatives of agribusiness,” he said, “but Congress’ intention has been abused.”

Kastel said two of the four farmers previously appointed by the Obama administration work for large produce businesses, Organic Valley and Driscoll’s, raising the question of whether they legally fit the criterion. In the latest round of appointments this year, an employee of a large Arkansas egg producer and a purchasing manager with California-based Clif Bar were selected, rather than farmers, the group says. “Congress deliberately set aside the majority of seats for independent organic stakeholders as a way to prevent this kind of unseemly corporate influence we have witnessed in recent years,” Will Fantle, Cornucopia’s co-director, said in a statement issued after the appointments were made.

Matter of Essentials

Under the Organic Foods Production Act (PL 101-624) non-organic materials are allowed in organic products if they’re on a list as “essential” for production in the absence of organic alternatives. The list is reviewed twice a year to see if the materials are still essential. Cornucopia and other groups, including Food & Water Watch, have accused the Agriculture Department of changing the rules to make it more difficult for the board to remove non-organic materials from the “essential” list.

“The USDA has changed the rules of the game,” Kastel said. “We’re now in the land of the midnight sun. The sun never sets.”

In April of this year, Sen. Patrick J. Leahy, D-Vt., whose office wrote the law, sent a letter to Agriculture Secretary Tom Vilsack saying he thought the policy change was in “conflict with the letter and intent of the statute. We are particularly concerned that such a substantive change was made without the benefit of full notice and comment.”

The changes were made during the government shutdown in October 2013, when a board meeting was canceled, thwarting any discussion of the new rules. The agency defends the changes, saying they were meant to boost transparency and support from those with a stake in organics, noting there are now two public comment periods during the sunset review. “These reforms protect organic farmers and consumers by ensuring that any changes to organic rules, including adding any items to the list of approved synthetic materials, are only made with the support of a strong majority of the board,” the agency said in an email.

Kastel said the institute is working on a possible legal action against the agency for changing the voting rules without consulting the board and without public comment.

The agency stresses that since 2008, only five synthetics have been added to the list, while 40 substances, both synthetic and non-synthetic, have been removed, denied or further restricted. “Most, if not all, of the changes to the organic regulations and guidance have added stricter requirements not weakened them,” the agency said.

Merrigan noted the process for getting a material on the list is extensive, requiring a rule-making and public comment process. “With the onslaught, the firehose [of materials] coming up for sunset, the idea was to marshal our resources and focus on materials of concern,” she said.

When the organics law was passed in 1990, it triggered an extensive rule-making process that saw a series of fights over what could be included under the organic label, including irradiated foods, genetically modified ingredients and crops treated with sewage.

The Agriculture Department, which was reluctant to embrace the organic program at first, entertained the inclusion of “the big three,” as these became known in the process, but ultimately didn’t allow them after organic advocates fought the agency. They have been fighting ever since, even — or perhaps, especially — as organics have exploded into a $32 billion industry.

“Maybe this is a historical legacy of organic always feeling besieged and small,” Merrigan said. “But it’s persisting even though there’s growth in the industry. I don’t think the politics is maturing as quickly as the business is.”