Arthur Harvey, an organic blueberry farmer in Maine, thought the National Organic Program (NOP), the arm of the USDA that oversees the organic label, had gone too far in diluting and weakening the act governing the label. In October 2003 he sued the agency. His claims were rejected by a federal district court, but last week an appeals court accepted some of Harvey's arguments and has directed that changes be made in the NOP. Organic Business News, a monthly newsletter, (sorry, it's only available by mail) summarized Harvey's concerns in its December issue as follows:
1. NOP cannot grant a blanket exemption from the National List [of allowed synthetic substances] for "any non-organically produced agricultural product" when it is not commercially available.The appeals court agreed with Harvey on three issues:
2. The NOP cannot allow the certification of products with less than 95% organic ingredients.
3. The NOP cannot allow synthetic ingredients in organically-labeled processed foods when OFPA (the Organic Foods Production Act) forbids the addition of synthetic ingredients to processed foods.
4. Wholesalers and distributors who meet the definition of handlers and handling operations in OFPA cannot be excluded from the law.
5. Certifiers should be allowed to give free advice to their clients to help them overcome barriers to certification, even though they receive money from the clients. [The regulation against this was promulgated to prevent a conflict of interest among those who certify organic status for farming and processing operations. Private consultants who have no say over certification currently do the bulk of the advice-giving.]
6. Dairy animals cannot be fed 80% organic feed for the first nine months of the year prior to being sold as organic, because the law says that dairy animals must be fed organically produced feed for not less than 12 months prior to sale.
7. Certifiers should be allowed to use their own private certification seals when their standards exceed those of the USDA.
1. The NOP had no authority to allow some 38 synthetic ingredients into the processing and handling of organic foods.Few people took Harvey seriously until his suit was joined by the Organic Consumers Association, Sierra Club, Public Citizen, Inc., NOFA-Mass, Greenpeace USA, Waterkeeper Alliance and prominent individuals in the organic community. With their help he continued to pursue the case. The case might still be appealed, and the district court is being asked to clarify issues surrounding the blanket exemption issue.
2. Dairy herds must be fed 100 percent organic feed during the required 12-month conversion process.
3. Proposals to use non-organic agricultural ingredients in food labelled organic will have to be reviewed in each case for each processor to determine whether an organic version is not commercially available. No blanket exemptions are allowed.
Unfortunately, the case is just another example of how lawyers rather than farmers will now be fighting over what it means for something to be organic. This is what Dennis Blank, editor and publisher of Organic Business News, told me he feared would happen. When the lawyers get a hold of the law, it won't be about what's organic anymore. It'll be about who has the best lawyers. The organic community got lucky this time. Will they be so lucky in the future?
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