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Who Will Enforce the Organic Foods Production Act?

Last week, the National Organic Standards Board (NOSB) had the second of its twice-annual meetings in Lexington, Ky. The Organic Consumers Association (OCA) was there to ask the board to reclaim its statutory power to decide which, if any, non-organic or synthetic substances should be use in organic food or farming.

Congress established the certification program consumers know as “USDA Organic” in 1990 when it passed the Organic Foods Production Act. Instead of letting political appointees at the U.S. Department of Agriculture decide what’s “organic,” OFPA created a unique 15-member citizens oversight board. OFPA specifically states that the USDA Secretary may not include exemptions for the use of specific synthetic substances unless the NOSB says so.

Furthermore, OFPA grants the NOSB power over the National List of Approved and Prohibited Substances. Even if the NOSB approves a synthetic substance, its use is limited to 5 years, under OFPA’s “Sunset Provision:” “No exemption or prohibition contained in the National List shall be valid unless the National Organic Standards Board has reviewed such exemption or prohibition … within 5 years of such exemption or prohibition being adopted or reviewed…”.

When the NOSB decides to add or renew a non-organic or synthetic substance to the National List, OFPA requires a “decisive vote” of two-thirds.

In 2013, Miles McEvoy, the USDA National Organic Program (NOP) director, unlawfully suspended the OFPA’s Sunset Provision. In doing so, he unilaterally changed the way the NOSB conducts its 5-year review of National List substances. Instead of a two-thirds decisive vote of 10 out of the 15 members of the NOSB being needed to renew an exemption for non-organic or synthetic substance, he decided that a vote of six out of 10 NOSB members would be enough.

This prompted an angry letter from Sen. Patrick Leahy and Rep. Peter DeFazio, the principal authors of the OFPA, letting the USDA know that this action was “in conflict with both the letter and intent of the statute,” and:

“The policy change turns the sunset provision of OFPA on its head, to create a presumption that all synthetic materials on the National List will be automatically renewed at the 5-year sunset mark, and to establish a high hurdle (two-thirds vote) to remove the material from the list. This is a complete reversal of the statutory and long-standing policy on the burden of proof that has required a two-thirds majority vote in order to re-new the material on the National List.”

The authors of the law never wanted to see synthetic or non-organic substances used in organic with weak support. Currently, every material on the National List got there with a two-thirds vote as required by OFPA. The sunset policy change means that now, National List materials will be renewed, even as support for their use erodes.

The Louisville meeting was proof that we’re heading in that direction.

For the first time ever, a substance was renewed for use in organic with less than the decisive vote required under OFPA.  Aqueous potassium silicate was renewed with only nine votes. Prior to the sunset changes imposed by McEvoy in 2013, this material would have no longer been allowed for use in organics.

As our allies at the Cornucopia Institute put it in a tweet from the meeting, “This cuts to the core of the argument that the new process means the sun will never set on nearly every non-organic and synthetic material on or added to the National List.”

One day, we could even see a substance continue to be allowed in organic with the support of only six out of 15 NOSB members. If that happens, and the most controversial ingredients are allowed to be used in organic with the support of only a small minority of organic stakeholders, it would erode consumer confidence in organics.

Who will enforce the Organic Foods Production Act?

The NOSB could if they wanted to. The USDA NOP can’t do anything without the cooperation of the NOSB. If the NOSB refused to review National List substances, those substances would “sunset” and their use would be illegal.

If the NOSB threatened to use its power over the sunset process to hold up review and renewal of National List substances, they could force the USDA to do the right thing—or at least negotiate.

The USDA might reverse course and leave the “sunset provision” alone.

Or, it might at least submit what is clearly a substantive policy change using due process, including calling for public comment. Unfortunately, when McEvoy changed the sunset process in 2013,  he did it by fiat, without any opportunity for the public to weigh in.

Another compromise might be for the USDA to limit McEvoy’s sunset change to National List substances that get approved in the future.

All of the non-organic and synthetic ingredients that are currently allowed in organic were approved by NOSB members who voted based on the assumption that these substances would “sunset” in five years. When NOSB members voted on these substances, they couldn’t have known that the sunset process would be made toothless. In fact, NOSB members have often justified their votes by saying that the industry needs time to move away from a synthetic substance, believing that future renewals would be based on a vote of 10 out of 15 members of the board.

None of these strategies were employed by any of the NOSB members in Louisville last week, but they all remain on the table.

McEvoy changed the sunset process, but future NOP directors could change it back.

And, it’s entirely possible that this violation of OFPA could be successfully challenged in the courts.

OCA remains committed to protecting the integrity of organic standards. We are concerned that McEvoy’s actions are intended to erode organic standards. We don’t intend to let that happen.  USDA Organic still has the greatest potential to be the very most meaningful standard. Most of all, this is because it is a public standard, a democratic standard, a standard of the people, by the people and for the people. We will continue to struggle for health, sustainability and democracy in our food system.

Alexis Baden-Mayer is political director for the Organic Consumers Association.