By Harriet Behar
The regulations governing organic agriculture in the United States, while being unique in some of their strict provisions and oversight, are still part of the overall U.S. legal system. The legal system mandates a review of the economic impact any proposed or changed regulation would have on those operating under the regulation. Recently, this mandated review has made it difficult for the National Organic Program (NOP) to implement decisions made by the National Organic Standards Board (NOSB) to strengthen the organic standards.
How Changes to the Law are Made
The 1990 Organic Foods Production Act included a provision dictating continuous review and improvement of the regulations written to implement the law. Materials on the National List of approved and prohibited substances are mandated to be reviewed every 5 years by the National Organic Standards Board. This allows for items to be removed from the list if circumstances have changed, such as better alternatives found or the substances have negative effects found to be unacceptable.
The NOSB works diligently, with significant public input, to respond to consumer and producer demands for clarification, improvements and additions to the organic regulations. Stellar examples include a more prescriptive pasture regulation and clarification of animal welfare standards. The law clearly gives the NOSB exclusive power to add or remove materials from the National List. The NOP cannot add or subtract an item without NOSB discussion and a publically viewed vote.
An economic analysis was recently done on NOSB-approved recommendations to oversee the stocking rates and outside access for poultry. These have been contentious issues since the organic regulation was implemented in 2002. The U. S. law for organic poultry is very different from Canadian and European standards. These other countries have very prescriptive guidelines for numbers of poultry per square foot, both inside and outside. There has been pressure on the NOSB to solidify the U.S. organic poultry laws.
Although our regulation clearly states that poultry must have access to the outdoors, a 2002 NOP determination, allowing porches as an acceptable form of outside access, has led to very large organic hen houses that have either a few small porches, or none. This clearly does not meet the spirit or letter of the law.
Unfortunately, the recent economic impact analysis on poultry did not review what the law mandates, but instead looked at what is currently being allowed. This was compared to what a stronger regulation with specific sizes of indoor and outdoor poultry living areas might require. The analysis found that the NOSB recommendation would increase production costs of large hen houses that currently offer little to no outside access. However, this determination did not account for the fact that these operations are not meeting the current regulation by not allowing the birds outside. The report did mention that it appears consumers would be willing to pay higher prices for poultry products produced using higher standards, but this was not a “factor” when assessing the negative economic impact.
Economic Analyses Have Limitations
A key weakness of these economic impact assessments is that they only take into account the dollars it might cost to meet a new regulation, without assigning any “value” to the positive impact on an organic label with more consistent and transparent standards for animal welfare. It is important that organic standards continually improve, in a practical way, so the organic community can be proud of our production systems, and consumers can be assured of the strength of the organic label. Organic producers are constantly learning better methods, and replacing current synthetics with natural alternatives or improved practices. Recognition of these efforts, and the extra value any stricter standard may bring to the marketplace, must be part of any economic impact study.
In April 2011, the NOSB voted to completely ban the use of sodium nitrate in organic production, matching bans currently in place in Europe and Asia. The previous U.S. NOP regulation allowed sodium nitrate only to meet 20% of the nitrogen needs of an organic crop. Since there has been no action by the NOP, sodium nitrate has now been relisted without this restriction, and can technically be used to meet 100% of the nitrogen needs of an organic crop.
It is my understanding that the lack of action by the NOP on sodium nitrate relates to concern over the economic impact non-allowance would have on producers currently using it. This lack of action has basically resulted in the NOP allowing a substance that the NOSB has voted to remove entirely from organic production. This action does not meet either the spirit or letter of the law. The NOP has, to their credit, issued guidance warning producers to be prudent in their use of sodium nitrate. But technically, unless there is a published regulation that bans it, it is allowed.
In another decision, the NOP decided to ignore an annotation to the carrageenan listing. This notation, restricting use in infant formula, was voted in by the NOSB when carrageenan was being reviewed at its 5-year sunset date. The NOP chose to stick with the current listing, stating that, since recognized as safe by the FDA, carrageenan should not be restricted from use in infant formula.
The organic regulation mandates its own review of organic product ingredients. The NOSB can use FDA information in its decision-making, but does not rely exclusively on FDA’s approved ingredient list. There are many colorings, preservatives, flavorings and more that the FDA allows in non-organic food and considers safe, that do not meet the rigorous review of organic food ingredients the NOSB has in place.
Continual Improvement of Organic
When we can clearly differentiate organic as the best production system, now and into the future, we gain loyalty from current customers and increase our customer base. Consumers already expect organic to be the gold standard of production across all types of agriculture. Without the recognition that organics are continually changing for the better, we run the risk of watering down the organic label until it has a nebulous definition like “natural” does.
Continual improvement is an important part of our organic law. While it is understood that some synthetics, such as synthetic vitamin C (ascorbic acid), or baking powder, may be important and necessary ingredients in organic foods, hopefully the list of approved synthetics will grow shorter, rather than longer over time. The use of natural and organically grown alternatives are preferred to non-organic or synthetic versions, and in a few instances, such as yeast, have recently become available.
The integrity and value of the organic label relies heavily on consumer confidence that organic products go through a stricter review for health and safety than other food products. If the organic community cannot trust that the process overseeing organic materials and standards is consistently followed, we run the great risk of losing confidence that the organic label stands for the highest quality food, produced in an ecological manner and reviewed to protect the health of those who grow it and consume it.
Stricter regulations do not need to result in more paperwork. Organic agriculture is a system, and production methods verify compliance to the law. As the organic regulation is rewritten over time to reflect improvements to organic production systems, the wording can be crafted to lessen–not increase–documentation. We do not want to stifle improvements, or cultivation of more organic farmers and consumers. The USDA must view economic impacts on organic regulations in a more holistic way than they review other regulatory changes. Otherwise, we run the risk of having a stagnant regulation that does not keep up with either producer or consumer expectations.