This story is lifted completely from the Beyond Pesticides Daily News Blog for March 26, 2021
(Beyond Pesticides, March 26, 2021) Certified organic, soil-based growers were dealt a blow on March 22 when a U.S. District Court in San Francisco ruled that soil-less hydroponic growing operations can continue to be eligible for USDA (U.S. Department of Agriculture) organic certification within the National Organic Program (NOP). According to the Center for Food Safety, the judge ruled that USDA’s exemption of hydroponics from the “soil fertility requirement mandatory for all soil-based crop producers was permissible because the Organic Foods Production Act did not specifically prohibit hydroponic operations.” The litigation was brought by the Center for Food Safety (CFS) and eight organic producers, and asked that the court to prevent USDA from allowing hydroponically grown crops to be sold under the USDA certified organic label. Beyond Pesticides has advocated against allowing soil-less crop production to be certified as organic under the NOP because doing so “undermines the authenticity of organic farming, and creates unequal competition, market instability, and consumer distrust in organic certification.”
The coalition of plaintiffs in the suit included some long-standing U.S. organic farms, such as Swanton Berry Farm, Full Belly Farm, Durst Organic Growers, Terra Firma Farm, Jacobs Farm del Cabo, and Long Wind Farm, in addition to organic stakeholder organizations, such as organic certifier OneCert and the Maine Organic Farmers and Gardeners Association.
Basic definitions are in order: USDA’s National Organic Program (NOP) is the federal program that develops and enforces standards for organically produced agricultural products. The National Organic Standards Board (NOSB), a committee appointed by the Secretary of Agriculture, is tasked with helping develop standards for what can and cannot be used in organic production, and to advise the Secretary of Agriculture on implementation of the Organic Foods Production Act (OFPA). The National Organic Standards (NOS) are those developed by NOSB to regulate certified organic production practices. OFPA is the statute that authorizes both the NOP and NOSB. Also: hydroponic “farming” systems grow plants in water-based nutrients rather than in soil. Aquaponic systems combine hydroponics and aquaculture (fish/shellfish farming) in a symbiotic system in which plants are fed, in part, the aquatic animals’ waste.
The District Court’s ruling by Chief Judge Richard Seeborg means that USDA can continue its permitting of organic certification of hydroponically produced crops. The question of hydroponic and aquaponic eligibility for organic certification has been very controversial, and centers on the very definition of organic production, which recognizes the foundational role of regenerative practices that improve soil health and promote ecological balance. Advocates for soil-based organic agriculture decry soil-less farming as violative of not only the dictates of the National Organic Standards, but also, the long-acknowledged principles of the organic movement.
The CFS suit arose from the organization’s 2019 petition to USDA to prohibit organic certification for hydroponic enterprises that neither use nor build soil. USDA denied the petition, after which CFS filed suit to challenge USDA’s ongoing greenlighting of organic certification for hydroponic operations. The suit maintained that such operations violate the soil-based standards of organic certification set out in Part 205, Subpart C of the NOP — Organic Production and Handling Requirements — which include these:
- The producer must select and implement tillage and cultivation practices that maintain or improve the physical, chemical, and biological condition of soil and minimize soil erosion.
- The producer must manage crop nutrients and soil fertility through rotations, cover crops, and the application of plant and animal materials.
- The producer must manage plant and animal materials to maintain or improve soil organic matter content in a manner that does not contribute to contamination of crops, soil, or water by plant nutrients, pathogenic organisms, heavy metals, or residues of prohibited substances.
In addition, OFPA is clear that required [organic] systems plans are focused on the soil; 7 USC 6513, Organic Plan states: “An organic plan shall contain provisions designed to foster soil fertility, primarily through the management of organic content of the soil through proper tillage, crop rotation, and manuring.”
NOSB has for many years discussed “the overriding question of whether soil-less systems are compatible with organic production,” and has trod back and forth on the matter. For example, in 1995 it made a recommendation that said, “Hydroponic production in soil-less media to be labeled organically produced shall be allowed if all provisions of the OFPA have been met.” But in 2001, in proposing regulations for greenhouse production, the board rejected hydroponic production as not meeting all the basic organic production principles. Again in 2010, its recommended greenhouse standards concluded that hydroponic and aeroponic systems ought to be prohibited from organic certification.
Forward to 2017, when the board voted against banning hydroponic and aquaponic crops from eligibility for organic certification. (At the same time, NOSB did proscribe the eligibility of aeroponically grown crops — those grown by suspending plants in the air, with roots exposed, and supplying nutrients through misting of those roots.) Advocates for soil-based organic approaches have repeatedly voiced their opposition to organic certification for hydroponics.
Amidst the clamor, during the Trump administration, USDA issued in 2018 a bulletin that said that “hydroponic, aquaponic, and aeroponic operations have always been eligible for organic certification.” CFS noted in early 2020: “Since coming into office, the Trump administration has made its intent to gut organic standards clear. Allowing hydroponics to be certified organic is another attempt to weaken the integrity of the Organic label, and has resulted in market confusion and inconsistent organic certifications.”
CFS also wrote in 2020, “The National Organic Standards Board (NOSB), the expert body assigned by Congress to advise USDA on organic matters, has repeatedly called on USDA to prohibit organic certification of hydroponics, but USDA has ignored that recommendation.” As a result of USDA’s failure to do so, CFS filed the subject lawsuit. CFS continues, “The lawsuit filed today states that USDA’s rationale for denying the 2019 petition is arbitrary, capricious, and contrary to our federal organic law. . . . This is not the first time USDA has bent to the will of ‘corporate Organics’ in diluting organic standards. In 2016, CFS won a groundbreaking lawsuit closing a loophole that was permitting some organic operations to use compost contaminated with pesticides. CFS is currently leading a lawsuit challenging the Trump administration’s rollback of vital organic rules that set standards for organic livestock care, such as adequate space and outdoor access. The challenged loophole for hydroponic operations would eliminate any need for organic farming to involve working with nature.”
This recent decision will have a variety of impacts on certified organic growers, including putting them at a competitive disadvantage vis a vis hydroponic growers because there are a significant number of requirements related to soil management that soil-based organic production must meet — and from which hydroponic operations are automatically exempted. In addition, costs of growing in large-scale greenhouses (as hydroponic production often does) are lower than costs to operate soil-based farms.
Further, hydroponic operations do not need to undergo the three-year transition period that is required of any soil-based producer who seeks initial organic certification, thus significantly delaying return on investment for soil-based farmers. Last, because there is currently no labeling requirement to distinguish between soil-based and soil-less production, consumers cannot know how the certified organic lettuce they purchase was grown. These realities create a distinctly non-level playing field.
The decision, and the controversy in which it was made, are furthering tension and division in the broad community of producers who produce organically. Mother Earth Gardener writes about a “drift” in understanding of organic agriculture: “Conceptualized in the mid-20th century, the organic movement originally idealized a ‘closed-loop’ farm system, or a property that produced almost everything it needed on site. Based on the notion that a well-managed farm would rely foremost on natural processes, organic farming was fundamentally about maintaining and improving soil health. Today, organic certification has drifted away from this original premise. The requirements for certification focus less on a natural farming philosophy and more on what isn’t allowed — namely, synthetic chemical inputs, such as fertilizers and pesticides. This creates a considerable gray area for farming practices that technically follow organic certification requirements but ethically and/or technologically may fall short of their original intent. While hydroponics don’t pollute the soil with toxic chemicals, they also don’t improve it.’
Those who support continued certification of hydroponic production have previously pointed to the “irresponsibility” of banning such producers from organic certification and labeling, claiming that it would confuse consumers, and “put hundreds of growers out of business, take valuable supply away from organic consumers, and squelch innovation in our movement,” according to Melody Meyer, vice president of policy and industry relations for United Natural Foods, a huge distributor of organic products to retailers.
On the other side of the divide, a long-time Vermont organic tomato grower, owner of plaintiff Long Wind Farm, founder of the Real Organic Project, and one of the plaintiffs in the subject suit, Dave Chapman, had plenty to say about the decision: “The Federal court decision rejecting the hydroponic lawsuit was a sad note in the song of our democracy. The Federal government’s ongoing redefinition of organic is an example of corporate influence drowning out citizens’ voices. We all know that soil-less growing cannot be called organic. But the organic movement will continue with or without the USDA, as the National Organic Program moves further and further away from the people it was meant to serve and protect.”
Co-owner of California’s Full Belly Farm, and plaintiff, Paul Muller, opined: “Soil fertility has always been the fundamental building block of any organic farming system. That’s why at Full Belly, we work hard to build soil fertility through active soil management and amendment, diversified crop planting, cover cropping, and other farming practices that promote soil health and biodiversity. But after the court’s ruling, in-the-ground certified organic farms like Full Belly will have to continue to compete in the same marketplace with hydroponic producers who do not need to lift a finger to build soil. While hydroponic systems may have their own benefits, the connection between soil health, human health, and planetary stewardship is missing in these soil-less systems. They simply should not be called ‘Organic.’”
Food Safety News reports the reaction of Sylvia Wu, senior CFS attorney and counsel for the plaintiffs, to the court’s decision: “Under the Court’s ruling, hydroponic producers can sell their crops as organic without building soil fertility, yet organic farmers growing food in soil have to meet various soil-building requirements to be certified organic. This double standard violates the very purpose of the organic label and is contrary to the federal organic act. We are analyzing all our legal options and will continue to work hard to defend the meaning of the organic label.”
Beyond Pesticides stands with those who advocate that certified organic crops ought to have been grown in soil, and that producers who earn USDA certification need to comport in their practices with all the requirements of the NOS. Beyond Pesticides has written, “When there is increasing awareness of the need to advance production systems that regenerate the earth, sequester carbon, and protect and enhance biodiversity, allowing hydroponics — which meets none of these critical needs — to be marketed as organic, and without full disclosure, undermines the basic principles, values, and legal standards that govern the commercial use of the word ‘organic.’”
Organic agriculture that embraces the principles developed by pioneers in the organics movement, and codified by the organic statute and regulations based on its authority, is a long-term solution to myriad problems. The climate emergency, human and ecosystem health, biodiversity, impacts of toxic pesticide use, and food system vitality and capacity are all improved by the adoption of systems that focus on proactive regeneration and stewardship of our soils. Soil health is the foundation for many solutions to these crises. Certified organic status and labeling should be granted only to enterprises that meet NOS requirements, and thereby contribute to that health.
Sources: https://www.foodsafetynews.com/2021/03/court-ruling-clears-way-for-hydroponics-to-join-national-organic-program/ and https://www.centerforfoodsafety.org/press-releases/6314/court-rules-usda-authorized-to-certify-soil-less-hydroponic-operations-as-organic
All unattributed positions and opinions in this piece are those of Beyond Pesticides.