Having a clear set of regulations in organic serves a very important purpose.
This way, organic farmers can know the rules and decide whether they want to compete in the marketplace or not. And if these farmers do decide to compete, they will produce food in a way that organic consumers expect.
Yet, when these agreed-upon regulations are not being enforced by the USDA, it creates an unfair playing field and places an illegal financial burden on those farmers who are following the rules. And this financial burden can be so great that it puts many of them out of business.
This is the situation we have with hydroponics being allowed in organic.
Soil-based farmers must wait three years to transition to organic while a hydroponic operator could be up and running within days. Growing in soil is much more complex because all of the variables are not as easily controlled, and it is more costly, from both a time and operational perspective. Additionally, the organic regulations were written for soil-based crops and do not have specific requirements for plants grown in water.
Endorsed by the Organic Farmers Association, The Cornucopia Institute, Northeast Organic Dairy Producers Alliance, PCC Community Markets and others, Center for Food Safety (CFS) has filed a legal action against the USDA to halt this practice immediately.
As I have written about before, hydroponics violates Section 6513 b-1 of the Organic Foods Production Act of 1990 (OFPA), which says that:
An organic plan shall contain provisions designed to foster soil fertility, primarily through the management of the organic content of the soil through proper tillage, crop rotation, and manuring.
Plants growing in a container of water have nothing to do with fostering soil fertility. Therefore, hydroponics cannot be legally justified under OFPA.
Nevertheless, this has not stopped the USDA from saying the complete opposite.
In a press release dated 1/25/18, the USDA’s Agricultural Marketing Service sent out a bulletin, which read:
Frustrated with the USDA’s acceptance of hydroponics in organic, two recently created add-on labels — The Real Organic Project and Regenerative Organic Certification — have both banned soilless systems.
While this precludes the use of hydroponics in these two private certifications, it does not address the matter at the USDA level — a governmental program on which millions of Americans rely each day.
“While I understand these private certifications, we have worked for the last 25 years to protect the USDA organic seal’s integrity and are not willing to give it up. Having a government standard is crucial for society; this should not be left to the free market alone. The USDA organic seal represents a ‘No, thank you’ to methods of harmful food production that include pesticides and GMOs, and there is a critical role for government to provide a more healthful and environmentally beneficial label alternative for people. That is what makes this such an important battle,” said George Kimbrell, Legal Director at Center for Food Safety.
TIMING
According to Center for Food Safety, because the USDA has avoided making a firm decision on hydroponics in organic, filing a legal petition was a necessary first step. (The press release issued in early 2018 was not a definitive ruling by the agency.)
With a rulemaking petition filed, the USDA now has a legal obligation to respond, and the nature of this response may prompt CFS to file a lawsuit and challenge the USDA in court.
In terms of when we should expect a response from the USDA on this matter, it is very uncertain. It could be months or years. There is no statutory law as to when the USDA must respond.
And this is where legal strategy comes into play.
Litigation may be required to get an answer. Or, it may be better to wait until the next administration to get a response.
However, there can be no guarantee that if a different president takes control of the White House in 2020, the USDA would be any more favorable to organic. After all, the Obama administration allowed hydroponics in organic to flourish and did nothing to stop it.
Most importantly, the legal process to ban hydroponics in organic – one of the biggest issues our industry faces – has begun.
As developments about this matter unfold, we will be sure to keep Organic Insider readers informed.
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Have a great day! 
Max Goldberg, Founder |
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