"Organic Food"

“A Tough Row to Hoe: What Partlo v. Johanns Means for the Organic Food Industry”

Appearing in JNREL Vol. 21 No. 2 this comment was written by former staff member Karen Campion. Staff Member Natasha Camenisch wrote the following abstract.

Organic farming has become a popular sector of agriculture in the United States. Organic farmers do not use chemicals on their crops and "currently draw a premium of anywhere from 10% to 130% over the price of conventional produce" because of their farming methods. Since organic farmers are making a huge profit off their crops, the amount of cropland dedicated to growing certified organic crops, fruits, and vegetables is continually growing. As a result of the benefits of organic farming, many consumers have sought to protect the integrity of this agriculture practice.

Congress enacted the Crop Loss Disaster Assistance Program (CLDAP) to provide "emergency assistance to all farmers who lost crops due to a disaster, as soon as practicable." Partlo v. U.S., 2006 WL 1663380 at *33 (D.D.C. 2006). In 1995, the CLDAP established separate payment rates and yields were established for different end uses of the same crop. The rates were meant to reflect the differences in price that produce would have commanded on the open market but for having been ruined in a disaster.

In 1998, organic farmers suffered a serious setback. The Secretary of Agriculture issued regulations specifying that "in spite of differences in yield or values," separate rates would not be established for "crops with different cultural practices, such as organically or hydroponically grown." Id. at *4. In Partlo v. Johanns, the court determined that there was no duty on the Secretary to establish distinct rates.

Organic farming has a number of health and environmental benefits. The Partlo decision could make organic farming less attractive for farmers and consumers alike. In her comment titled, "A Tough Row to Hoe: What Partlo v. Johanns Means for the Organic Food Industry," Karen Campion analyzes the court's explanation of why the plaintiff's Equal Protection rights were not violated and how the Administrative Procedures Act was not violated.

Addressing Fraud in Organic Farming

This post was written by staff member Adrianne Crow.

Almost everyone has heard of the supposed benefits of organic foods. However, recent problems surfacing in the organic food industry suggest that consumers may not always be getting what they pay for.

A recent article in the Lexington Herald-Leader explained that in the past year, several fertilizer makers, some of which are leaders in the California organic market, have come under fire for using substances in their fertilizers that are banned from organic farms. Jim Downing, California moves to curb organic fraud, LEXINGTON HERALD LEADER, available at http://www.kentucky.com/greenspot/story/939041.html (last visited Sept. 22, 2009). In January, Port Organic Products was raided by federal agents who found a stock of aqua ammonia. Jim Downing, Organic crop fraud targeted, THE SACRAMENTO BEE, available at http://www.sacbee.com/business/story/2188480.html (last visited Sept. 22, 2009). Aqua ammonia is a common source of synthetic nitrogen. Additionally, an investigation by The Sacramento Bee discovered that the Department of Food and Agriculture discovered the company California Liquid Fertilizer adding synthetic nitrogen to its fertilizer. Id. This particular company sold its produce to organic food leaders Earthbound Farm and Driscoll's, as well as other organic farming leaders. Id.

While synthetic fertilizers do not necessarily present health risks to consumers, they are disfavored by organic farmers because of the negative environmental impacts they can cause. Id. These fertilizers utilize increased energy in production, lower the natural fertility of soil and increase water pollution. Id. Furthermore, consumers of organic produce are willing to pay a higher price for the goods because of the promise that they were grown without these types of chemicals. Id.

Despite the controversy caused by these dishonest business practices, the only penalty handed down to California Liquid Fertilizer was to stop selling the product on the market. Id. Reacting to this situation, the state of California, which leads the nation in the organic farming, also plans to be the leader in combating fraud in the industry. Id. Assembly Bill 856, which was authored by Assemblywoman Anna Caballero, addresses these problems in the area of organic fertilizer. Id. A copy of the bill in its current state can be found on Cabballero's website: http://democrats.assembly.ca.gov/members/a28/Legislation/default.aspx. The bill, which should arrive on the desk of California Governor Arnold Schwarzenegger soon, increases penalties for violations of organic fertilizer standards. Id. In addition, it increases the authority that state regulators have over inspections and raises approximately $416,000 per year for enforcement due to new fees imposed on fertilizer makers. Id.

Exactly how "organic" does organic food have to be?

This post was written by staff member Derek Leslie.

As one peruses the local grocery store, or spends a Saturday morning at their local farmer’s market, it quickly becomes apparent that foods labeled natural or organic have really taken off. Grocery store chains devoted to the once-niche organic food market have expanded rapidly in the past decade. Indeed, it is hard to grab a bite these days at all without hearing the buzz words associated with this bona fide food phenomenon. And while its success as a brand and a marketing tool seems clear, the word organic may not be as straightforward as you might have hoped.

In 1990 Congress enacted the Organic Foods Production Act (OFPA) in order to provide consistent national standards for producing and marketing organically produced agricultural products. Organic Foods Production Act (OFPA), 7 U.S.C.A. §6501 (West 2009). OFPA requires the Department of Agriculture to promulgate regulations to effectuate its purpose. These regulations, then, provide the legal standard for the certification of foods as “organic”. Specifically, to be sold as organic, a food must “be produced and handled without the use of synthetic substances, such as pesticides, and in accordance with an organic plan agreed to by an accredited certifying agent and the producer and handler of the product.” Harvey v. Veneman, 396 F.3d 28, 32 (1st Cir. 2005) (citing 7 U.S.C. § 6504). An organic plan refers simply to an agreed upon procedure to follow in the care of the agricultural product in order to ensure it meets the standards set forth in the OFPA and the associated regulations. Organic Production and Handling System Plan, 7. C.F.R. 205.201 (2009). This includes plans to make certain synthetic substances as well as products exposed to synthetic substances do not come into contact with the organic product. Id. This, however, is just the beginning of the process.

Surprisingly, all organic foods are not created equal. Labeling and certification are, therefore, not quite as simple as “organic” or “not organic.” Actually, it consists of a four-tier labeling system based upon the percentage of organic ingredients the food contains: products containing 100% organic ingredients may be labeled “100 percent organic,” products containing 94 to 100% organic ingredients may be labeled “organic,” products made from 70 to 94 % organic ingredients may be labeled “made with organic (specified ingredients or food groups),” and finally, foods that contain less than 70% organic ingredients may identify organic ingredients used on its label as “organic.” Product Composition, 7 C.F.R. § 205.301 (2009).

Moreover, products in the first two tiers of the labeling categories may bear both a United States Department of Agriculture seal and the seal of a private certifying agent. 7 C.F.R. §§ 205.303(b)(4)-(5)(2009). Products in the third tier, those made from 70 to 94% organic ingredients, may bear the seal of a private certifying agent, and products in the final tier, those containing less than 70% organic ingredients, may not bear a USDA seal nor that of a private certifier. 7 C.F.R. § 205.304 (2009); 7 C.F.R. § 205.305(b) (2009).

This, still, is not the end of the process. OFPA requires the Secretary of Agriculture to establish a National Organic Standards Board to create a list of synthetic substances recommended as exceptions to OFPA’s general prohibition against their use in the production of organic products. Another series of guidelines within OFPA exists for these exceptions. 7 U.S.C. 6517(a) (West 2009).

With the growth of the organic food industry, these regulations are having a significant impact on the lives of average American citizens, who remain largely oblivious to their operation. If we are to become savvy organic food consumers, it is necessary to familiarize ourselves with the labels and certifications that come with the territory. Only then will we be equipped to truly know what we are eating.