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Who's Watching the USDA's Organic "Henhouse"?

by Joe Mendelson, Legal Director, Center for Food Safety

On October 21st USDA Secretary Ann Veneman announced the final rollout of the country's first national organic food standards and the marketplace appearance of the new green and white label identifying foods as "USDA Organic." The label represents the culmination of a decades-long struggle by organic farmers, environmentalists and consumers to create a viable alternative to our industrial agricultural system.

The implementation of the organic standards represents a critical moment for the future of organic food and farming. With the National Organic Program in place, however, top USDA officials clearly have focused on other issues. In a recent speech, Secretary Veneman seemed more intent on supplanting organic agriculture with genetic engineering as the agency wrestles with a vision of "sustainable agriculture." This apparent administrative apathy toward the role of a successful organic program has created an NOP that exists as an insular bureaucracy, failing to ensure continued public involvement and oversight in the evolution of the program.

The result is that decisionmaking and policy discussions on critical issues have happened with little, if any, public notification or involvement. Since the October launch the impacts of USDA's decisionmaking have become increasingly real. In particular, consumer and environmental advocates have raised questions about whether the NOP is properly performing its role as accreditor of organic certifying organizations. Fueling concern is the appearance of numerous new, previously unknown certifying agents applying for accreditation into the USDA program. During development of the final standards in 2000, the USDA identified 49 existing organic certifying agents, including 13 state programs.

In anticipation of its role as accreditor, the USDA predicted no significant growth in the number of certifying agents seeking accreditation by the new USDA-run program. Contrary to such projections, the number of applicants has far surpassed this number to now total 122. This large number of accreditation applicants presents important questions about whether an apparently disinterested agency is able to properly process and oversee the large volume of prospective organic certifiers for adherence to organic standards. The Organic Foods Production Act (OFPA) clearly anticipated the potential for bureaucratic compromise during the accreditation process, specifically by calling for an accreditation Peer Review Panel as a public oversight mechanism to ensure that accreditation procedures are followed.

The panel is critical to consumer confidence in the integrity of the organic label. After all, the organic food label is only as good as the certifying agents enforcing the standards. While a February 2002 website posting by the NOP acknowledges this requirement, unfortunately, USDA has yet to establish the mandatory Peer Review Panel, despite having already accredited more than seventy organic certifiers, including a significant number of new certifying agents. This flaunting of the law has already shaken confidence in the process. Last spring, one company, Fieldale Farms, attempted to pressure the NOP into relaxing the 100% organic feed requirement for organic chicken production. While the agency did not accede to this demand, the NOP did accredit Fieldale's organic certifying agent, Georgia Crop Improvement Association.

This raises questions as to how thoroughly USDA scrutinized this certifier's application and whether the processes of accreditation review and decision making are rigorous enough to prevent acceptance of new certifying agents intent on manipulating or weakening the organic standards. Unfortunately, attempts by consumer and environmental organizations to analyze the USDA's performance in overseeing the first round of accrediting organic certifiers have been met with stiff government resistance. Several months ago, the Center for Food Safety (CFS) sought public release of all the documents used by USDA in making accreditation decisions. Absent the Peer Review Panel, the documents are the only way the public can determine whether the integrity of organic standards will be preserved by certifiers.

To date, CFS's Freedom of Information Act request seeking the documents has been rebuffed. At varying points, government officials have claimed that the agency did not have all the documents currently in its possession or that their reproduction and release would cost CFS thousands of dollars and use up the entire USDA organic program budget. Such a response leaves the public wondering whether the Administration's antipathy toward organic is already winning out over the need to preserve the integrity of the hard fought standards through a strong accreditation program.

As special interests continue their efforts to exert influence over the organic program, transparency within the NOP will be paramount. For example, the United Egg Producers, an organization representing the majority of industrial-style egg producers, has openly sought to overturn the requirement that organic poultry have access to the outdoors. Whether at UEP's behest or simply as a holiday offering to agribusiness, USDA has moved to alter the outdoor access requirements without public notice or pronouncement. This fall the USDA overturned a Massachusetts certifier's refusal to certify a poultry operation that did not meet the national organic program requirements for outdoor access [see related story, page 4]. In accepting the poultry producer's appeal of the certification denial, USDA undercut the authority of one of its accredited certifiers by essentially telling it to "shut up and certify" a producer not in compliance with the law.

Without a right to formally appeal the USDA's action, the certifier is now faced with the dilemma of following USDA's order or sticking to its principles while likely facing suspension of its accreditation. This episode typifies how the absence of peer review and public oversight of the USDA-certifier interactions threatens the integrity of the organic program. By refereeing a confidential appeals process, USDA has made a decision that alters the meaning of "outdoor access" for poultry. Under this scenario, the organic consumer and most organic farmers lose. The consumer now cannot tell whether their certified product was produced in compliance with the standard, and upstanding organic farmers may lose a certifier that understands the values and interests of organic production and its consumers.

So as the new organic label makes a splashy entrance into stores across the country, it is critical that at this time the organic community takes steps to prevent erosion in consumer trust in the integrity of the organic label. To that end, the Center for Food Safety and several other organizations filed a legal petition with the USDA on October 16th giving the agency its last chance to create the critical Peer Review Panel before litigation is filed. The legal petition requests that the agency immediately act to create the Panel based upon recommendations of the NOSB. On an October national radio show USDA responded to the legal petition by stating plans to put the Peer Review Panel in place "soon," but offered no other specific details. Yet, the government agency has neither taken any steps to fulfill this promise nor has it moved to make its accreditation documents public.

Unfortunately, without such action this may just be the beginning of a new multi-year battle to ensure that the new organic program does not become a victim of governmental abuse and neglect. Under law the USDA must respond to the legal petition within a "reasonable" period of time. In general, our courts and other federal agencies have defined "reasonable" as a period of time from 180 days to 18 months. Should the USDA continue to stall on responding to the petition, CFS expects that it will file litigation to force such an answer within the year. In the meantime, USDA accreditation continues without public oversight.

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