Refusing to Wait for the USDA, Texas Attorney General Defends the Organic Label on His Own

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Last month, a state attorney general took enforcement into his own hands, exposing a loophole the USDA’s National Organic Program (NOP) failed to address.

In a landmark settlement, Texas Attorney General Ken Paxton stopped Albertsons and its subsidiary chains from secretly misting USDA certified organic produce with a synthetic pesticide — ProduceMaxx, an EPA-registered antimicrobial pesticide whose active ingredient is hypochlorous acid.

Under NOP rules, chlorine materials are permitted in organic handling, but any use in direct food contact must be followed by a potable water rinse that brings residual chlorine to or below the Safe Drinking Water Act’s limit of 4 parts per million. ProduceMaxx is sold as a 6,000 ppm concentrate; even at its label-directed misting range of 30 to 60 ppm, that is roughly 8 to 15 times the organic limit — and the required rinse cannot be performed on a live retail display.

According to the AG’s findings, Albertsons was misting the chemical on the retail floor with no clear-water rinse — a practice that strips the organic status from the produce on the shelf. Albertsons signed the agreement without admitting wrongdoing.

What makes the case critical is not just what Albertsons did but the regulatory loophole that allowed it to happen.

Whole Foods Market and Natural Grocers are USDA certified organic retailers and undergo certifier audits that vet their back-room and misting protocols.

Grocery stores that do not process food but sell organic produce, such as Albertsons, are generally exempt from mandatory USDA organic certification and, thus, operate in a blind spot.

Store managers may be connecting chemical drums to automated misting lines that spray organic produce, unaware that doing so puts the product out of compliance.

SIDESTEPPING THE USDA’S ENFORCEMENT ARM

Rather than wait for the NOP to act, Paxton bypassed the federal government entirely.

He used the state’s Deceptive Trade Practices Act, arguing that it is inherently deceptive to sell produce as organic once it has been handled in violation of organic rules. That a state attorney general had to step in is a glaring indictment of the USDA.

The industry knows the NOP’s record on enforcement — from years-long delays addressing organic grain fraud from abroad to the contested allowance of hydroponics, a direct violation of the soil-building requirements in the Organic Foods Production Act.

Further compounding the matter, the agency is under-resourced, with NOP staff reportedly cut by roughly one-third during the USDA’s reorganization late last year.

WHY IT MATTERS

If the NOP cannot or will not enforce organic integrity in the last mile of the supply chain, state-level consumer fraud litigation is the new frontier for protecting the organic seal.

Given that chemical suppliers market these misting systems to chains nationwide to reduce shrink, the practice is almost certainly happening in thousands of other conventional stores.

But the issue extends beyond illegal misting practices at retailers.

“Conventional pest control practices and chemicals, cross-contamination during cleaning, storage and display, and not verifying a certified source for produce arriving in generic boxes all threaten the integrity of the organic seal,” said Alan Lewis, vice president of advocacy & governmental affairs at Natural Grocers. “It is basically the honor system, leaving organic consumers deeply exposed.”

Until the NOP can guarantee integrity at the shelf, that honor system is only as strong as the retailer willing to enforce it — and shoppers are paying the organic premium on faith.

With gratitude, Max Goldberg, Founder