Harvey and Goliath:
A Maine Farmer Rocks the NOP

DAVID GOULD / Sustainable Times 1apr2005

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Back in 1990 when the Organic Foods Production Act (OFPA) was written, virtually nobody thought it would take another 10 years before the National Organic Program rules would be finalized. Back then, the people writing the Act were thinking in a context of an organic production sector that was almost all farmer based - i.e., very little processing of organic agricultural products was being done. Consequently, there was very little familiarity among those people about the vast world of food processing, and all the myriad issues (unfamiliar to most farmers) that go along with it.

The people who were at those early meetings and helped write the Act (I wasn't one of them) tell their own versions of what they remembered. Those versions are not always the same, but enough first-hand accounts - backed by a recently unearthed videotape of one of the decisive meetings - confirm the language in the Act met the majority-ruled intention of those present.

One of the most contentious issues of that meeting was whether or not synthetic substances could be included in the handling and processing of organic foods. The outcome of the debate was clear. To quote from the Act, in the very first part of the section on Handling (section 6510): "For a handling operation to be certified under this chapter, each person on such handling operation shall not add any synthetic ingredient during the processing or any post harvest handling of the product" Whether you understand legalese or not, it can't get much clearer than that.

The intention of the purity of "organic food" reflected by the above clause is in many ways admirable. It does also, however, pose serious limitations on how food (or fiber, or anything else) might be handled post-harvest and still be called "organic." Despite the warnings voiced by a minority opinion at that early meeting, those in favor of the prohibition of synthetics prevailed - and as the minority predicted, many of them are coming to regret the day they put it into the law. (Bound by confidentiality I cannot name names, but you might be very surprised by who was on which side of the argument back then.)

Either way, almost as soon as the Act was passed, many processors began seeing the limitations of this part of the Act, and began working in any way possible to get around it. Processors convinced certifiers that certain synthetic materials were absolutely essential to processing organic foods. The NOSB was lobbied heavily, and its recommendations for synthetic substances to be included in the handling section of the National List grew. People basically pretended the prohibition in the Act didn't exist, or lived in a state of persistent (and active) denial and continued using synthetics in processing and handling. This continued through the 1990's in such a pervasive manner that by the time USDA actually took to writing the NOP rules, most of those synthetics the NOSB agreed to recommend showed up on the National List.

Many of us questioned how the NOP could do this, given the very clear prohibition in the Act. One man had the gumption to do something about it. Arthur Harvey is a farmer in Maine. He claimed that the NOP was not consistent with OFPA - and not only on the synthetics in processing issue. He claimed USDA violated OFPA on 8 separate counts, and sued U.S. Agriculture Secretary Ann Veneman and USDA for violating the Act. He lost on all 8 counts. But he appealed. And late in January 2005 the appeals court sustained his claim on 2 of those counts. Harvey prevails on the prohibition of synthetics in products labeled as "organic" (which under NOP applies to the "100% organic" and "organic" labeling categories). However, the "made with organic ingredients" category is unaffected by the prohibition, a point which the court clarified for Harvey and his lawyers on March 30, 2005.

The other count which the appeals court sustained was Harvey's claim that NOP could not allow the one-time dairy herd conversion allowance to feed up to 20% non-organic feed for the first 9 months of the conversion period. This count does affect the growth of the organic dairy sector, especially considering the continual relative shortage of organic milk in the American market. This limitation is perhaps not insurmountable, although it does have certain people and industries less than pleased. Harvey was right though; he was only trying to get USDA to follow the Act.

A third count on which Harvey lost, he actually kind of won - that which refers to the "commercial availability" of non-organic agricultural ingredients in foods labeled "organic." Basically, the court sustained the opinion that unless said non-organic agricultural ingredient is included on the National List (i.e., 7 CFR 205.606), it cannot be allowed in a formulation that is labeled "organic." This is clearly how section 205.606 is written, but again, people (operators and certifiers) have just not wanted to acknowledge the plain English there. The court has now ordered it to be so - and it could be a very good thing for those producers of specialty organic ingredients. And of course the more kinds of agricultural products that are produced organically, the better for the environment.

The prohibition of synthetics in processing and handling understandably has thrown the organic processing world into turmoil. The effect on "organic" products is potentially devastating. Carbon dioxide to fumigate those insects out of the crop in your bin? Maybe not a possibility any more. (Is this a farm activity or a handling activity?) Sugar in your formula? Better start thinking of a new formulation, one that uses sugar that still has the molasses in it, since the lime used to precipitate the molasses out is a synthetic. Got some baking powder in your organic crackers? Excuse me - maybe that's crackers "made with organic grains." Washing that lettuce with some chlorine or ozone in the water? Is that "lettuce made with organic lettuce?" - or maybe you can't do that at all. A little silicon dioxide to keep your spice mix from caking up too much? Better go find some very fine steamed sand to use instead. Want to ripen your bananas with ethylene? Maybe you need to have a bin of rotting bananas in the corner instead of the ethylene generator. You get the picture.

It's not all bad though. In fact, there's a huge amount of good brought by Arthur Harvey. The status quo, which many people would like to maintain, has increasing problems as the National List expands inexorably and the "purity" of organics is compromised. There are a lot of good "organic" alternatives to the synthetics - not only materials, but practices (organic certification is about practices mainly, right?). If the "made with" labeling category is changed to require organic ingredients be used if they are available - regardless of the final percentage in the final product - we could actually have both pure "organic" foods and foods "made with organic ingredients" - both truthful claims - that were both equally acceptable to consumers and had some real truth in labeling. A little truth was much of what Harvey intended by his lawsuit. ICS supports truth in labeling. That said, the suit does obviously raise problems and challenges for organic operators - farmers and processors alike. What Harvey has done is forced us to take a serious look at an Act and Rule that have flaws and need reconsideration.

Now, there are some people who still don't want to really look at or change things. But something has to be done. There are several avenues being considered:

With the court's recent clarification, Harvey is now hoping to move forward quickly to summary judgment. He is planning to propose a phase-in period of 24 months for all operators to come into compliance, but he is not the only party hoping to influence the outcome. If USDA objects to his proposal, another solution may be needed.

Others propose to revise the NOP rules to better accommodate the court's ruling - this could involve revising the labeling category rules ("made with" formulation percentages, for example), and clearly defining "commercial availability," among other aspects.

Still others consider rewriting OFPA - the range of possible effects of this is broad and potentially dangerous. We could get a revised Act that speaks to the purity of the original Act and also acknowledges the positive impacts of the processing world - or we could open a Pandora's box that results in an organic rule that is hugely perverted by special interests. (Rewriting OFPA requires an act of the U.S. Congress.)

Discussions are underway on a variety of fronts - at and among USDA, OTA, consumer groups, special interests, politicians, and "friends of the court." The different sides have different agendas, and they don't always cooperate with each other. We need to acknowledge that the discussion is now being had by a much wider range of people and interests than existed in 1990.

For the moment, the NOP as we have come to know it is still in effect. Rest assured that ICS is monitoring this situation closely. We are connected to the debate and are weighing in with our perspective whenever we have the opportunity. We'll keep you posted so as to guide you in your operations to the best possible outcome. We encourage you to follow these events yourself, as well. If you have concerns or questions, feel free to contact us.

(For more details on the Harvey ruling, you can search the NOP and OTA websites.) About the Author:

David Gould, one of ICS's Certification Committee Team members, has been providing his expertise in organic certification to the company since 1998. He lives in Portland, Oregon with his family.

Independent Organic Inspectors Association You Expect It, We Inspect It Visit our website at http://www.ioia.net