Subverting the Law isn't Taking Place Just on Organic Farmland. It is Also Happening at National Organic Standards Board Meetings.

(Image courtesy of The New Yorker)

How Organic Insider operates: We accept no advertising, we have no paywalls and we make our newsletters free to everyone — because vital information about our industry needs to get out to as many people as possible. Please consider supporting our work, whether you are an individual or a company. Thank you so much.

In organic, trust is everything.

The more that fraud is committed and the more that the USDA refuses to enforce the rules, such as allowing hydroponics and turning a blind eye to organic factory dairies, the more that we’ll see major media outlets exposing the ugly truth about what is happening in our industry. This week’s New Yorker article, titled The Great Organic-Food Fraud, is another unfortunate example of this.

These unwanted pieces of attention seriously undermine the integrity of the organic seal and cause consumers to question whether the premium for organic is justifiable any longer, possibly opting for less expensive, conventional and Non-GMO food options.

While most people may think that what happens on organic farms or at the USDA are the only things we need to be concerned about, that is hardly the case. Equal attention must also be paid to what takes place at the bi-annual National Organic Standards Board (NOSB) meetings.

The 15-member “independent” expert panel, created by Congress, is supposed to represent all parties within the organic community, both large and small, across all parts of the value chain. Even though it does have a degree of statutory authority, the NOSB is largely charged with making recommendations to the USDA about rules and allowed farming inputs and food ingredients. This was codified in Section 6518 of the Organic Foods Production Act of 1990, where it says that the NOSB shall “assist in the development of standards for substances to be used in organic production and to advise the Secretary (of the USDA) on any other aspects of the implementation of this chapter.”

Other than reviewing and allowing synthetic materials, the NOSB does not have the final say when making policy. The USDA does.

That being said, part of maintaining trust and integrity in the organic system is to allow the NOSB to operate as per the mandate of Congress, and that is absolutely not happening.

As we wrote about last year, the USDA inserted language into Section 8 of the NOSB’s charter that says:

NOSB and subcommittee work agendas are developed in coordination with the NOSB and approved by the NOP (National Organic Program) Deputy Administrator.

Because of this language in the charter, the NOSB cannot independently establish its own work agenda. The NOP Deputy Administrator has to approve all items on the work agenda and has used this power to quash topics that the USDA does not want discussed, such as hydroponics. As a result, the NOSB is unable to freely and fully evaluate standards for substances to be used in organic production and thus cannot freely and fully advise the USDA Secretary, as mandated by law.

The NOSB charter cannot supersede an act of the legislative branch, but it has done so nevertheless. Quite simply, the USDA has subverted the statutory mandate of Congress.

Despite a recent report that the NOSB can now add items to the work agenda, no one should be fooled into thinking that the USDA has ceded full control over the work agenda to the NOSB. Until the official language is changed in Section 8 of the NOSB charter, the USDA controls the work agenda. Period.

Another worrisome development took place during the public comment period at the fall 2021 NOSB meeting a few weeks ago, where freedom of speech is now being curtailed.

According to Mark Kastel, Director of OrganicEye, the investigative arm of Beyond Pesticides, he was gaveled down and muted because he was complaining about conflicts of interest among certain members of the NOSB. Kastel also said that another individual was gaveled down for questioning the credentials and legal approach of the USDA’s National Organic Program when securing experts for technical reviews.

“They accused the two of us of denigrating individuals. Not only was this not true, but saying we can’t challenge any individual or corporation is illegal. This is a public meeting, and people should have the right to make comments that are of importance and relevance to the betterment of the organic program. No one was threatening physical violence. There was no proverbial yelling fire in a crowded room. We were simply exercising our rights as citizens, and the NOSB was employing over-the-top censorship. We’ll be researching our legal options to ensure that this doesn’t happen to any organic stakeholder again,” said Kastel.

The NOSB meetings are part of a public process that is supposed to instill confidence, not undermine it.

While verifying the veracity of every single acre of organic farmland in the U.S. is an impossible task, one would think that public meetings — open for all to see and participate in — would be managed to the letter of the law. They are not.

UPDATE ON DANONE AND B CORP

Danone North America (Danone) — the largest B Corp in the world — recently cut the contracts of 89 small organic dairy farmers in the Northeast, which not only served a devastating blow to these farmers and their communities, but it put the financial future of these farmers in very serious peril.

In a letter sent to the company from U.S. Representatives Peter Welch (D-VT), Chellie Pingree (D-ME), Jared Golden (D-ME) and Annie Kuster (D-NH), the lawmakers wrote, “Your actions against these Northeast farmers are in direct conflict with the B Corp commitment of ‘balancing profit with purpose’ and ‘using business as a force for good.’”

As we reported two weeks ago, B Lab (the entity that manages the B Corp certification) reviewed this situation internally and refused to revoke the certification of Danone.

On Monday, November 8th, eleven organic consumer and farming organizations submitted a complaint to B Lab asking it to re-evaluate this decision, complete a full investigation and “send the message that B Corporation’s status is credible.”

According to Kate Mendenhall, executive director of the Organic Farmers Association, one of the eleven organizations that signed the complaint, “If consumers have a B Corp organic brand that they value, they should ask that brand to pressure B Corp to uphold its values and hold Danone accountable for its actions. Consumers can also file a complaint directly with B Corp. Furthermore, we encourage B Corp organic companies to band together and put pressure on B Corp to hold Danone accountable. If there is no enforcement of the rules, consumers will start to lose trust in the values that B Corp represents.”

Kate Mendenhall said that her group is meeting with Danone representatives next week.

“Our hope is that Danone reverses course, makes the whole situation right and keeps its B Corp certification.”

In the meantime, organic consumers can file an online complaint with B Corp and can send a letter to Dan Osusky, Director of Standards at B Lab.

Organic consumers can also sign the Organic Farmers Association’s e-petition and MOFGA’s e-petition, both of which will be sent to B Lab. A directory of B Corp brands can be found here.

Organic Insider will be sure to keep its readers informed as developments related to this story unfold.

With gratitude, Max Goldberg, Founder