Efficiency or Democracy? NOP changes ‘sunset’ policy without public input
By Harriet Behar, MOSES
The National Organic Program (NOP) recently modified the way materials on the National List are reviewed at “sunset.” This change makes it harder to remove materials at their five-year sunset than it would be to keep them on the list. This affects a process that has worked since 2007, which was the first time materials were reviewed at sunset.
Prior to this change, a material needed to pass a two-thirds vote of the National Organic Standards Board (NOSB) to stay on the list, which is the same procedure materials go through when first being considered for inclusion. Now materials will remain on the list unless the NOSB comes up with a two-thirds vote to remove them.
This change to the sunset policy was made without input from the nor the greater organic community. This kind of significant policy revision without following normal notice and comment requirements sets a dangerous precedent and diminishes the authority of the NOSB itself. It impacts the ability of the NOSB to carry out its statutory responsibilities regarding the National List. Decisions such as this, that seem to prioritize efficiency and expediency, come at the expense of public input and democracy.
Change is Needed
For years, the NOP has expressed frustration with the number of changes being made to the National List of approved or not approved materials at sunset. Changes take up valuable NOP staff time and use up the NOP’s quota for printing law revisions in the Federal Register. So I understand why this change appeals to the NOP, and, at first glance, see merit in the change.
I recognize that it has been difficult to get changes to our law through the Office of Management and Budget, since removing or limiting the use of a product already in use on organic farms is perceived as having the potential to cause “market disruption.” It is true that farmers used to having the use of a specific synthetic, or processors with a product formulated using a synthetic found on the National List will experience some disruption and “hardship,” and would need to change their formulation or activities if they no longer had access to these materials. It is also true that time spent changing the current National List takes time away from other needed improvements, such as clarifying the “origin of livestock” or proposing organic mushroom, honey and aquaculture standards.
Not this Change
Let’s step back to look at the original intent of the “sunset” provision of the National List. The Organic Food Production Act (OFPA) prioritizes the use of natural materials and systems that foster the cycling of resources, promote ecological balance and conserve biodiversity. The use of synthetics in organic production systems is allowed, but only as an exception. Those synthetics must be thoroughly reviewed and approved for placement on the National List by two thirds of the National Organic Standards Board. Every five years, these allowed synthetics “sunset,” or are removed from the list if the NOSB does not vote to allow them for another five years. In the same way, non-approved natural materials also may be approved for relisting for five years at their sunset date. The OFPA mandates public input as an important part of all material review— both at first listing and at sunset.
A provision in the new policy allows an NOSB subcommittee, not the full board, to approve the maintenance of a material’s status quo. This lessens the opportunity for public comment from stakeholders, including consumers, environmentalists, scientists, farmers and processors. Although any member of the NOSB can ask for a full board discussion of the material, unless that request is made, the materials will not be reviewed by the full NOSB at sunset.
Those managing certified operations, as well as many consumers, know that organic certification is based upon continuous improvement. The removal of synthetics from the National List brings organic management closer to the intent of the Organic Foods Production Act, which identifies synthetics as exceptions. By making it more difficult to remove materials from the National List, we stifle the mechanism for continually improving organic production. Manufacturers, farmers and processors could be less likely to develop natural materials and systems to replace allowed synthetics if the synthetics can easily remain on the allowed list.
This also applies to materials on the section of the National List (205.606), which allows the use of non-organic agricultural products when an organic version is not commercially available. Again, the development of organic alternatives is stifled when the bar is set higher to remove allowed non-organic materials. Typically, synthetics are less expensive than natural alternatives, making their continued use more economically attractive than trying to develop alternatives that would stimulate removal of a synthetic from the National List.
Respect for Improvement
As someone who attends many of the National Organic Standards Board meetings and has read many of the Technical Reviews of these materials, I can say that many of the items on the National List have issues that should require a close look every five years. Is the material still necessary in organic production? Have any problematic health or environmental effects been found that should stimulate removal, or narrow the use to lessen the material’s negative impacts? These review criteria have been mandated in our organic law—at first listing and again at sunset.
Many of the controversial materials typically have been put on the list or removed by a very narrow margin, sometimes by just one vote. This was the case for the use of oxytetracycline for control of fireblight on organic apples and pears. Organic consumers and some growers convinced the board that continued use of this antibiotic in organic production was problematic from a health and environmental standpoint, as well as not being necessary in organic production. This material is not allowed in European organic production, and large-scale organic fruit growers who export do not use it. While I personally felt this change was a little premature due to lack of alternatives, I completely understand the need to remove this problematic tool from the organic fruit grower’s toolbox and work towards improvement of our organic systems.
Many times at the first listing vote, NOSB members have stated they are voting to allow a material since it could be removed at sunset when an acceptable alternative or system is developed. With this change to National List sunset procedures, NOSB members may not add materials to the list, knowing that once there, removal will be difficult. Short-term allowance of materials to encourage the growth of an organic sector, such as aquaculture or apiculture, will be stifled. This short-term allowance, once the status quo, has been changed to promotion of materials to remain on the list, almost forever. A material must now be shown to be problematic enough to convince 10 of 15 NOSB members to vote to remove, rather than retain it.
Preserving Organic Law
Our organic law is unique within the U.S. legal system, since it has continuous review and improvement built into it. Organic consumers, the driving force behind our growing and vibrant organic marketplace, expect organic operations to seek to lessen synthetic materials and rely instead on natural tools and systems. In a nod to efficiency, these procedural changes make it more difficult to remove synthetics and effectively discourage the development of better organic systems and tools.
While democracy can be slow and messy, the NOP missed an important opportunity to improve the implementation of our law. Members of the National Organic Coalition, including me, recommend that the NOP put this change on hold in order to bring in the knowledge of the greater community to develop a better solution to the bureaucratic problems of the National List sunset process.
Harriet Behar is a MOSES Organic Specialist. She represents MOSES in the National Organic Coalition and the National Sustainable Agricuture Coalition.
January | February 2014
Jan. 3, 2014
“Just the kind of advocacy we need right now.
Thank you for your vigilance and common sense.
Together we are able to decide among us when is the right time retire an inorganic substance.”
M. S. Thompson
Jan. 5, 2014
Harriet, enjoyed reading your comments on changes to the ‘Sunset’ protocol. Several points regarding the use of anti-biotics in orchards:
a. Growing susceptible cultivars/rootstocks in a fireblight zone is likened to growing peaches in cold climates; simply, it’s very risky, even for conventional fruit growers. Knowing the virulant nature of the disease, no ‘silver bullet’ can achieve full control to date.
b. There are resistant strains of the pathogen (E. emilovora) to tetracyclin; resistance may develop in humans & the ecosystem as well.
c. Let’s keep the organic community united.
Apr. 4, 2014
Harriet, thoroughly enjoyed your elucidating comments on the Sunset Protocol. As an organic foods consumer I was blissfully unaware that in certain circumstances non-organic materials maybe utilized, since organics were not available or not developed. It is my personal belief that the NOSB board should have the power to investigate and evaluate every 5 years what should be left alone and what should be eliminated based on current research. What was the reason NOP changed its policy?? Was there some pressure from individuals or groups!!
Dr. Kenneth Lim
For consumers, this also means that the list of synthetic and non-organic ingredients allowed in organic will just get longer and longer, making reading organic labels and choosing among organic foods more complicated, confusing and time-consuming. I m not happy about this, allowing non organic to be mixed with Organic, this is and will be in my opion a War on False marketing for Organic food and those food makers who want some of the $ in the game are playing the game to get their money. This is all about money and not health….
This change in the Sunset Policy reflects how much of Washington operates these days… the NOP could put this change on hold in order to bring the knowledge of the greater community to bear and develop a better solution to the bureaucratic problems of the National List sunset process.
As a certified organic grower, I admit it is sometimes tempting to follow the letter of the regulation regarding organic seed searches. At times it takes a while to find an organic source, and it may cost more due to supply shortage or delivery charges. But come on, I find it extremely rare that I can’t find the organic source. I believe that is because of exactly the restrictions currently in place. First, they create a market for organic seed, and secondly an opportunity for growers like myself to produce organic seed to sell. When I struggle to source organic seed, I consider growing that crop for seed. This seems to me a perfect formula/cycle for wider availability of organics. Weakening the standards short-circuits this cycle.
I’m with you all the way.