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Daily News Blog

27
Jan

Enforcement Rules for Organic Standards Far Surpass Those in Chemical-Intensive Agriculture

(Beyond Pesticides, January 27, 2023) The U.S. Department of Agriculture (USDA), through its Agricultural Marketing Service (AMS), announced on January 19 its final rulemaking, the Strengthening Organic Enforcement Rule (SOE). The new requirements aim to strengthen the integrity of the National Organic Program (NOP) through both enhanced oversight and enforcement of existing program regulations, and the introduction of new ones to address occurrences of fraud in organic supply chains. Beyond Pesticides welcomes this important step in increased rigor for the burgeoning organic sector; the organization has long advocated for strong enforcement of the provisions of the 1990 Organic Foods Production Act (OFPA), the statute that gave rise to the NOP.

It must also be noted that there is a significant difference between the (appropriate) attention being paid to oversight and enforcement in organic, and the long-standing lack of same in regard to the U.S. Environmental Protection Agency’s (EPA’s) pesticide regulations, weak as they are. Beyond Pesticides Executive Director Jay Feldman commented, “It is difficult to have a balanced conversation about any weaknesses in organic enforcement — which must be strengthened — without assessing the entire food system. The NOP provides the structure and the requirements for compliance with the OFPA. Not only does this far surpass anything that exists in the chemical-intensive food production sector, but also, advocates, government, and members of the agricultural community work continually to improve it. We must work to ensure that people can trust the USDA organic label, and know that the system is ‘wired’ to ensure its integrity.” To this end, those working in organic, believing in continuous improvement, have indicated that there must be vigilance in oversight and enforcement, as captured by Beyond Pesticides’ coverage of a 2010 USDA Office of the Inspector General (OIG) report.

To the point about lack of rigor in the regulation and enforcement of conventional (chemical) agriculture: the U.S. Government Accountability Office (GAO) has repeatedly identified flaws in federal oversight and enforcement related to pesticide restrictions, starting more than 40 years ago. See Beyond Pesticides’ coverage of an EPA Office of the Inspector General’s report on the agency’s inefficacy. Other coverage has included this report by Harvard Law School’s Environmental and Energy Law Program in 2020, and coverage of (1) a 2021 GAO report on poor protection of farmworkers from pesticides, (2) a GAO report on EPA’s “conditional” registrations practice, and (3) another GAO report finding that EPA “does not have sufficient chemical assessment information to determine whether it should establish controls to limit public exposure to many chemicals that may pose substantial health risks.”

The Federal Register publication of the SOE (which will be effective March 20, 2023) asserts that the rulemaking is designed to “strengthen oversight and enforcement of the production, handling, and sale of organic agricultural products. The amendments protect integrity in the organic supply chain and build consumer and industry trust in the USDA organic label by strengthening organic control systems, improving farm to market traceability, and providing robust enforcement of the USDA organic regulations.” The Washington Post reporting notes, “Key updates to the rules include requiring certification of more of the businesses, such as brokers and traders, at critical links in organic supply chains. It also requires organic certificates for all organic imports and increases inspections and reporting requirements of certified operations.”

Even deeper into the weeds, the AMS announcement includes a list of specific topics addressed: “applicability of the regulations and exemptions from organic certification; National Organic Program Import Certificates; recordkeeping and product traceability; certifying agent personnel qualifications and training; standardized certificates of organic operation; unannounced on-site inspections of certified operations; oversight of certification activities; foreign conformity assessment systems; certification of producer group operations; labeling of nonretail containers; annual update requirements for certified operations; compliance and appeals processes; and calculating organic content of multi-ingredient products.”

This new rulemaking finalizes the draft version proffered by USDA in 2020. USDA has taken some small steps to improve enforcement of the NOP requirements, including, for example, a memo to “put a stop to the practice of allowing organic certification for container systems produced on land managed with substances, such as the herbicide glyphosate, which are not permitted in organic production.”

Chief Executive of the Organic Trade Association, Tom Chapman, remarked that the new rulemaking represents “the single largest revision to the organic standards since they were published in 1990,” adding that it should help boost confidence in the organic label. According to The Washington Post, Mr. Chapman indicated that the move “raises the bar to prevent bad actors at any point in the supply chain.”

Executive Director of the National Organic Coalition, Abby Youngblood, commented that the organization “applauds the USDA for their sustained work to bring this rule to completion. Organic producers’ livelihoods depend on strong and consistent enforcement of organic regulations. For more than a decade, operations have been undercut by fraudulent products that have no business carrying the organic seal. NOC strongly supports provisions in this rule that will give USDA and certification agencies more authority to crack down on bad actors.”

Recent high-profile cases of “organic fraud” have brought increased attention to the issue of producers representing their products (e.g., non-organic grain, dairy, meat, or produce) as organic, and typically harvesting an undue premium price for the scheme. More recently, others in the organic supply chain have entered the fraudulent arena. And as the sector has grown, some “food manufacturers” source ingredients from abroad, which makes it more challenging to assure that such items are legitimately organic. Domestic producers recognize, and voice, that enabling such companies to market their products as organic — absent better oversight and enforcement — undermines trust in the label and makes a distinctly uneven playing field for “genuine Certified Organic” vs. “faux-organic.”

Both The Washington Post in 2017 and The New Yorker in 2021 covered such incidents. (That first article covers a shipment of soybeans from Ukraine, via Turkey, to California, during which trip the beans were miraculously transformed from conventionally grown/treated with pesticides, to “organic.”) Beyond Pesticides wrote an article in response to the somewhat “organic skeptical” coverage in The New Yorker article, “The Great Organic Food Fraud,” in which it was explained how the NOP operates, and provided fuller context for thinking about fraud in the organic sector, given the state of conventional, chemical-intensive agriculture and the massive harms it inflicts on public health and the environment.

Last year, a Minnesota farmer was federally indicted for fraud because of his scheme to sell what he claimed were organically grown grains — but were not, according to the FBI — to buyers in Pennsylvania and elsewhere. He netted some $46 million from those sales. A co-conspirator farmer in the case has also been charged in the scheme. Another example is that of several individuals and entities (out of Dubai and Turkey) being charged by the U.S. Department of Justice in the District of Maryland for a 2015–2017 multimillion-dollar scheme to export non-organic grain into the U.S. to be sold as Certified Organic.

Some in the organic sector note that the increased demand for organically produced foods in recent years may be contributing to the increase in such cases. The MinnPost writes, “The booming organic produce market is worth at least $63 billion per year. Increasing demands for organic grains have raised their prices to double or even triple the cost of grains grown conventionally with synthetic fertilizers, pesticides and herbicides. But for those who purchase grain, it’s difficult, if not impossible, to tell organic grain from non-organic grain, making fraud hard to detect and prosecute. And the temptation to sell crops at a much higher price is difficult for some to resist.” USDA has indicated, according to MinnPost, that the growth of the organic industry, for example, “has attracted many businesses to the USDA organic label and increased the complexity of global organic supply chains,” perhaps overwhelming the capacity of organic industry watchdogs.

USDA said in its press release on the new rule, “Complexity makes oversight and enforcement of the organic supply chains difficult because organic products are credence goods, which means that their organic attributes, or ‘integrity,’ cannot be easily verified by consumers or businesses who buy organic products for use or resale. The elements needed to guarantee organic integrity — transparent supply chains, trusted interactions between businesses, and mechanisms to verify product legitimacy — are more difficult to achieve in the increasingly complex modern organic industry.” This reality explains the importance of “eternal vigilance” on the part of federal regulators, and evolution of the NOP to respond to the dynamism of the organic sector.

Representative Chellie Pingree (D) of Maine welcomes the new SOE regulations, saying in a statement from her office, “When rule-breakers cheat the system, it sows seeds of doubt about the organic label’s integrity and jeopardizes the future of the industry as a whole. As a longtime organic farmer, I know how expensive and time consuming it is to adhere to the required standards to earn a USDA [C]ertified [O]rganic label. It’s been a long wait, but I am pleased that the USDA and the Biden Administration are publishing a final rule that works to help consumers trust that the food they’re paying for was actually farmed in a way that supports soil health, minimizes synthetic material usage, and strengthens biodiversity, as the organic label suggests. Equally importantly, it is critical that farmers who comply with the rigorous certification standards are not losing sales to fraudulent growers, suppliers, or importers.”

Beyond Pesticides is among the most ardent of voices for organic integrity, as evidenced by the organization’s consistent urging of steps to protect it. (For more, see here, here, here, and the organization’s webpage, Keeping Organic Strong.) Beyond Pesticides recognizes that protecting and improving the organic sector is an ongoing project, and is hopeful that the new rule will make meaningful differences in NOP oversight and enforcement — bolstering trust of the Certified Organic designation and label by the public and, indeed, by elements of the organic supply chain itself. Advocates for organic integrity look forward to the improvements this SOE is designed to launch, will pay attention to its impacts on the organic sector, and continue to encourage public engagement with keeping organic strong.

Source: https://www.washingtonpost.com/business/2023/01/19/usda-rule-organic-fraud/

 

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

 

 

 

 

 

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