If Grower Groups are Deemed Illegal, Industry Executives Foresee Chaos in Organic

(A rural cocoa farming family in Ghana. Photos courtesy of FiBL, Christian Andres.)

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The recent bombshell lawsuit against the USDA, which argues that its allowance of grower groups violates the Organic Foods Production Act of 1990 and creates a “shadow” organic certification system, has resulted in tremendous anxiety and concern across the organic industry.

While it is up to the courts to determine whether grower groups are circumventing the required annual inspection of each organic farm by an approved certifier, the removal of grower groups — without possible alternatives put into place — has the potential to severely disrupt the global organic supply chain, especially products sourced from small organic farmers in Asia, Latin America and Africa.

“The effect would be catastrophic,” said John Gohring, sourcing development advisor at Tradin Organic, one of the largest organic ingredient suppliers and a company that is actively engaged in smallholder agriculture projects around the world. “The livelihoods of these small organic farmers are already very precarious and cutting off their access to the U.S. organic marketplace would impact them in a tremendous way, not to mention that they are on the front lines of using agriculture to combat climate change and boost biodiversity.”

According to The Research Institute of Organic Agriculture FiBL in Switzerland, smallholder group certification with an internal control system (ICS) represents 80% of organic farmers worldwide.

Estimated global organic group certification from FiBL, as of 2019:

– 2.6M organic producers under ICS
– 5,900 ICS certified groups
– 4.5M organic hectares under ICS
– 58 countries with ICS certified groups

But it isn’t just the farmers that may be affected. Consumers could feel it directly as well.

“Given that certified organic smallholder farms are producing the vast majority of organic coffee, cocoa, sugarcane and cotton, as well as many other key ingredients used in organic food, a breakdown in the supply chain would be very likely,” said Florentine Meinshausen, project manager and senior expert of group certification at FiBL. “It’s unthinkable for each farm to have to pay for organic certification, as the costs would be completely out of scale compared to their sales and volume. Many of these small farmers are in extremely remote locations, and they lack the skills and infrastructure to manage certification themselves. Furthermore, it would not add to the integrity of the system.”

Ryan Zinn, regenerative projects manager at Dr. Bronner’s, also stands by the merit and integrity of grower groups.

“For decades, our company has believed in third-party certifications, strict governance, checks and balances, and having an active, on-the-ground presence around the world to ensure that crops are being produced ethically, fairly and to the letter of the law. If we thought that grower groups violated any of our core beliefs, including what kind of product that organic consumers expect, we would not be involved with grower groups in any capacity. However, we believe that grower groups, with a well-functioning ICS, not only have very high organic integrity but are a force for good. Furthermore, these groups provide additional benefits that you may not see from a traditional, once-a-year organic inspection, such as training, harvest monitoring and extension services.”

“If grower groups become illegal, we would see the organic cacao and coffee market practically cease to exist. The industry might eventually shift to large-scale organic plantations, which care little about social or ecological impact, and this would consolidate power to large corporations at the farm level.”

(A Ghanaian farmer drying his cocoa after fermentation.)

What complicates this situation even further is that the EU has already changed its grower group rules, which go into effect by the end of 2024. According to FiBL, the new and more onerous EU regulation will result in significant and new obstacles for grower groups, and many small organic farmers worldwide may be cut off from the important EU organic marketplace, as the regulatory changes prove to be too costly and disruptive. So, observers had been holding out hope that these small farmers would still be able to access the U.S. organic market. Now, they now fear the worst.

“If the U.S. court rules that grower group certification is illegal, I worry that millions of small farmers will leave organic,” acknowledged FiBL’s Florentine Meinshausen. 

NOT EVERYONE IS SOLD ON GROWER GROUPS

Despite the positive impact that grower group certification seems to be having throughout the world, organic watchdog group OrganicEye, which partnered in the lawsuit against the USDA with the plaintiff, Oregon hazelnut farmer Bruce Kaser, remains unconvinced.

“Grower groups have never been legal,” said Mark Kastel, executive director of OrganicEye. “Third-party certification from an approved organic inspector is taking place on almost none of these farms, the USDA has no idea who these farmers are, and there is no transparency.”

“However, our concerns are not strictly legal. It is the propriety. If it was only companies I trust, like Dr. Bronner’s, Nature’s Path or Eden Foods, that would be one thing. Grower groups, which started off as communities and co-ops certifying their fellow small farmers, have morphed into structures that provide blanket approval for any corporate agribusiness to self-certify their own supplies. That is a profound conflict of interest and a prescription for fraud, and the result is undercutting U.S. family-scale farmers who can no longer compete. And if organic premiums truly existed in the marketplace, an indication that the system is working as it should for domestic and international farmers, this lawsuit might never have been filed.”

“If the court does rule against the legality of grower groups, we will not be short of organic chocolate, coffee or any other commodity,” he continued. “The industry will adapt and conform with the law.”

HOW WILL THE LANGUAGE IN THE STATUTE BE INTERPRETED?

Even though grower groups have been in operation for decades, well before the Organic Foods Production Act of 1990 (OFPA) went into effect in 2002, what the case comes down to is how the federal court interprets the language in OFPA, a statute ratified by Congress, and whether the USDA’s newly enacted Strengthening Organic Enforcement rule violates the statute.

In the statute, there is language that speaks to every farm being inspected on an annual basis by an approved organic certifier.

Section 2107 (5) — A program established under this title shall provide for annual on-site inspection by the certifying agent of each farm and handling operation that has been certified under this title.

In the statute, there is no language that speaks to grower group certification.

However, there is language that speaks to groups and cooperatives.

Section 2103 (15) — The term ‘‘person’’ means an individual, group of individuals, corporation, association, organization, cooperative, or other entity.

Section 2103 (18) — The term ‘‘producer’’ means a person who engages in the business of growing or producing food or feed.

The court will have to decide if said “person” — or grower group — has the legal grounds to certify 98% of its member farms as organic, even though it is not an approved organic certifier. The Strengthening Organic Enforcement rule, which codified grower group certification, requires 2% of the group’s members to receive an annual inspection from an approved organic certifier.

The plaintiff is asking the District Court in Oregon to declare grower group certifications illegal and direct the USDA federal officer in charge of the USDA’s National Organic Program, currently Dr. Jennifer Tucker, to instruct certifiers to cease grower group certifications immediately.

Have a fantastic holiday! Max Goldberg, Founder