Organic Broadcaster

USDA’s failure to enact new livestock standards upends organic rule-making process

By Maggie McNeil, Organic Trade Association

The Organic Trade Association is honored to be featured in this space that for so many years has offered the respected insights of Harriet Behar. Harriet’s last Inside Organics column talked about the importance of organic standards being robust, consistent and clear in order to stay meaningful and in order to maintain the integrity of organic.

Our association could not agree more. That’s why in September we took the very serious step of filing a lawsuit against the U.S. Department of Agriculture over its failure to put into effect new organic livestock standards. We did not take this action lightly. But after careful consideration, it became clear that we had to take this step to stand up on behalf of the entire organic sector and protect organic integrity, advance animal welfare, and safeguard the process for the development of organic standards.

Our CEO and Executive Director Laura Batcha explains it this way: “The organic industry deeply respects its contract with the consumer and will not stand aside while the government holds back the meaningful and transparent choice of organic foods that deliver what the consumer wants. The government’s failure to move ahead with this fully vetted regulation turns upside down the entire process by which organic regulations are set—a process that Congress created, the industry has worked within, and consumers trust.”

So, acting in the interests of the organic sector, the Organic Trade Association’s Board of Directors voted unanimously to legally take USDA to task for not honoring its rule-making mandate as a federal agency.

This issue of the Organic Broadcaster goes to press Nov. 14, the very same day that the Organic Livestock and Poultry Production rule, commonly referred to as the Organic Animal Welfare Rule, was set to go into effect. On Nov. 9 the USDA announced another six-month delay in the rule. That’s good news AND bad news.

The Organic Trade Association had anticipated a further “walk back” by the Trump Administration of more than a decade of work to improve and clarify organic animal agriculture regulations. However, the silver lining is that the Organic Trade Association lawsuit prevented USDA from complete withdrawal of the organic animal welfare rule.

Any steps by USDA to unwind the changes to federal organic regulations are being taken against a backdrop of nearly universal support among the organic community, animal welfare advocates, and consumers for the rules that USDA has now rejected. We will continue this fight in the court, where a federal judge will now evaluate whether the Administration has wrongly ignored the laws that require consultation with the National Organic Standards Board and those requiring informing the public and providing consumers a chance to comment on organic policies before they take effect.

We are still hoping that our federal officials will decide to uphold their end of the bargain, and abide by their mandate. But if not, the following is a primer on our action, and why we know this was the right thing to do, and why we are confident that we will prevail on this important issue for the organic sector.

Our suit alleges that the USDA has violated the Organic Foods Production Act, and unlawfully delayed the effective date of the final livestock standards that were developed by industry and in accordance with the established rule-making processes. The suit also contends that the USDA has violated the Administrative Procedure Act—which sets out the rule-making processes established by Congress—because the repeated delays were issued without any public process. We also allege that the USDA abused its discretion by ignoring the overwhelming public record established in support of these organic standards.

Supporting the Organic Trade Association in the suit, as groups harmed by this protracted government inaction, are organizations representing organic livestock farmers, organic certification agencies, and organic retailers and consumers.

There is a failure of the government right now to advance the development of organic standards. The American organic sector is the gold standard of how a successful public-private partnership works, but if the government does not pull its weight in this partnership, then the organic sector must do everything it can to make sure it is continuing to move forward. Organic is an opt-in regulated marketing program that ensures products bearing the USDA Organic seal meet strict consistently applied standards and provide the consumer a meaningful choice. Organic producers and businesses choose to be organic, and choose to follow a set of clear and strict federal organic regulations. The organic sector is unique in that regard, because we welcome and appreciate robust regulations to maintain the integrity of organic.

The organic animal welfare rule is the result of 14 years of public and transparent work within the process established by Congress, and reflects deep engagement and input by organic stakeholders during multiple administrations, both Republican and Democrat.

It addresses four broad areas of organic livestock and poultry practices, including living conditions, animal healthcare, transport, and slaughter. The rule represents a refinement and clarification of a series of organic animal welfare recommendations incorporated into the Organic Foods Production Act of 1990, which established the federal regulations overseeing the U.S. organic sector.

After extensive public input and a thorough vetting process that included the transparent review and recommendation process of the National Organic Standards Board, an audit by the Agriculture Department’s Office of Inspector General and solid economic analysis by the National Organic Program, the National Organic Program released the final rule on Organic Livestock and Poultry Practices on Jan. 19, 2017, and published it in the Federal Register on that day. Due to a White House Memorandum to federal agencies released the next day, requesting a regulatory freeze on rules recently published or pending, the effective date of the rule was delayed to May 19, 2017.

On May 10, 2017, the USDA delayed the effective date again by an additional six months to Nov. 14, and opened a 30-day comment period asking for responses to four possible options for the Final Rule: 1) let the rule become effective Nov. 14, 2017; 2) suspend the rule indefinitely, during which time the USDA would consider whether to implement, modify or withdraw the Final Rule; 3) delay the effective date of the rule beyond Nov. 14; 4) withdraw the rule.

More than 47,000 comments were received during the 30-day comment period, with 99 percent of those comments in support of the rule becoming effective as written, without further delays, on Nov. 14, 2017.

Laura Batcha makes the point: “Organic regulations apply only to certified organic producers, and those organic producers are overwhelmingly in favor of this new regulation. Most of the criticism of the new organic animal welfare rule has come from outside the sector, and by special interest groups not impacted by the regulation, but which would like to override the will of our members.”

USDA ignored that solid public support for the rule becoming effective on Nov. 14, 2017, and just five days before the rule should have gone into effect, the department announced another delay, this one for six months until May 14, 2018.

Specifically, our lawsuit argues:
• That USDA has violated the Administrative Procedure Act because the repeated delays were undertaken and published without any public process.
• That USDA has violated the Administrative Procedure Act and abused its discretion by proposing action to indefinitely delay or kill the properly adopted rule, in stark contrast to the established public process.
• That USDA has violated the Organic Foods Production Act and its consultation provisions enacted to apply in just these circumstances for industry and public stakeholders to revise, refine, and advance organic standards via a well-defined process.
• That the Trump Administration Executive Order freezing regulations should not apply to the voluntary industry-driven organic standards that allow for businesses to opt in or out.

The lawsuit also describes the extensive public process and overwhelming record used to develop the standards, and details the faulty appeals decision from USDA on the use of “porches” to comply with the existing outdoor access requirements of the standard that have resulted in an uneven playing field.

The Organic Trade Association asked the court to reverse the agency’s decisions to delay and eliminate options proposed by USDA to further delay, rewrite, or permanently shelve the rule—thereby making the final livestock rule effective immediately, as written.

We all know that American consumers are eating more organic food than ever before. Our 2017 Organic Industry Survey found that organic food sales in the U.S. totaled $43.1 billion in 2016, marking the first time organic food sales in this country have broken the $40 billion mark. Organic food now accounts for more than 5 percent of total food sales in this country, another significant first for organic.

Organic meat and poultry sales posted new records in 2016, increasing by more than 17 percent to $991 million, for the category’s biggest-ever yearly gain. Sales are expected to surpass the $1 billion mark for the first time in 2017. Growing awareness of organic’s more encompassing benefits over natural, grass-fed or hormone-free meats and poultry is spurring consumer interest in organic meat and poultry aisles.

In March 2017, Consumer Reports National Research Center conducted a national phone survey on the opinions of Americans regarding the organic label. The survey found that six out of 10 Americans said it is highly important that the animals used to produce organic food are raised on farms with high standards for animal welfare. For consumers who always or often buy organic, this number rose to 86 percent. Also, more than half of Americans say it is highly important that eggs labeled organic come from hens able to go outdoors and move freely outside. Among consumers who always or often buy organic, that number rises to 83 percent.

People are choosing organic because they know it makes a difference. They look for the USDA Organic seal because they understand that the seal means that product was grown and produced in ways that are different from other agricultural practices. Organic dairy, livestock and egg producers follow the highest standards in caring for their animals because that is what they believe in. And that is what the organic consumer rightfully expects of the organic industry.

If the organic rule-making process, which has served the organic community and the organic consumer so well, is allowed to be over-ridden by special interest groups not impacted by this regulation, then we’ve lost not just this fight, but could be in jeopardy of losing the organic battle.

The organic sector depends on USDA to set organic standards fairly and according to the law. When USDA fails to do this, it is time for us to insist that it live up to its responsibility.

Maggie McNeil is the director of media relations for the Organic Trade Association, a membership-based association of over 9,500 organic businesses across 50 states, representing the entire organic supply chain from farmers to retailers.     


From the November | December 2017 Issue

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