National Organic Coalition Responds to Harvey Rulings

The Harvey v. Veneman lawsuit and its implications for the organic community have been the focus of many meetings and discussions in recent weeks among the National Cooperative Grocers Association (NCGA) and its partners in the National Organic Coalition and other public interest organizations. This includes the amici (friends of the court) who entered the case in hopes of helping to shape the outcome of the suit and to hold USDA exercise of regulatory power within the parameters established by OFPA—the Organic Foods Production Act of 1990.

The Organic Trade Association also has been regularly communicating with its members about the Harvey case and potential outcomes, and they have met with our coalition and a broad group of concerned organizations. It is imperative that the organic community approach legislative solutions with consensus; we could face a chaotic environment of tug of war within a Congress and administration that have not proven overly supportive of organics.

On March 30, the First Circuit Court ruled on Mr. Harvey’s motion for clarification regarding the effect of the initial ruling on the “made with organic” category. The court styled this as a correction of the January 26 decision rather than a new ruling. A footnote was added, stating: “the ban on the addition of synthetic substances in handling applies only to those products labeled ‘organic’ or ‘100% organic’. The statute does not prohibit the addition of synthetic substances to food labeled ‘made with organic [ingredients]’ provided the other requirements of the Act are met. See 7 USC 6505(c).” This clarification is very good news, given the conjecture and concern brewing in the industry over the court’s initial ruling, and it should foster an atmosphere of stronger cooperation in determining solutions.
 

The Program and the public

The root of this situation is critical to keep in mind: the USDA does not have the authority to contravene the enabling legislation in its implementation of a program, despite any amount of process involved in that implementation. The organic industry is making a strong argument that the Organic Foods Production Act should be changed to be consistent with the National Organic Program developed by the USDA, on the basis of there having been considerable meetings within the organic community and a public rulemaking process. Essentially, the argument is that we should content ourselves with the rule that was developed and return to the Program that existed prior to the Harvey decision. What is not considered in this particular argument are the beliefs and expectations of the average consumer.

We serve many types of consumers. In recent years, we have examined in depth the range of understanding of organics and sustainability within the greater public and how many messages the average consumer processes while exploring the array of food choices available. In food co-ops, we interact with a high percentage of consumers who are committed to the principles on which the organic industry was formed and who have played a large part in shaping that industry.

Yet, as committed as some are, it cannot be assumed that the average consumer keeps pace with a detailed regulatory process. The process undertaken by the USDA to develop the organic rule may have been public, but following that process for the past 12 years was certainly not a mainstream consumer practice. However, purchasing organic products has certainly entered the mainstream. There is plenty of anecdotal evidence and some preliminary research to indicate that consumers do not expect there to be a dilution of the principles of the original Act in the foods labeled “organic.”
 

Truth in labeling?

What does this suggest? It suggests that the success of the organic market is largely driven by consumer expectations that were shaped through decades of practice by farmers, processors, and manufacturers prior to a USDA program; and through diligence by a wide array of organizations, including food co-ops that committed themselves to education about what “organic” means and the impacts of organic agriculture. Our educational messages did not include promotion of synthetic ingredients or conventional feed in organic food production, which today are outgrowths of the regulatory development of the USDA’s program. Most consumers would be dismayed to learn that these things occur in the production of certified organic foods. This also suggests that there is real opportunity for more transparency and consumer understanding in the organic labeling scheme. This opportunity for more clarity in labeling is a key positive outcome of the Harvey case.

The Harvey case and its implications has flown low on the public radar to date, but we will eventually have to come clean with consumers—either through a tightening of the federal standards to better conform with the original law, or through communicating legislative changes that alter what we’ve previously preached about organic products. Proposals for legislative change will no doubt be made on behalf of the organic industry; but how many segments of the organic community will these proposals represent?

The situation does not have to be disastrous. We can examine all the options available to provide resources that allow small dairy farmers affordable entry to the organic market. We can strengthen the burden of proof regarding the use of synthetic ingredients by the manufacturers that insist on their necessity and that petition for their use.

There is little argument that the organic industry is booming, with nearly 20 percent growth during each of the last 10 years. The argument that this growth will slow with changes to the National Organic Program that conform to OFPA represents a short-term versus long-term view on the potential of the organic market. No one—manufacturers, producers, retailers, or consumers—wants empty shelves. Naturally, there will be those who want to enter the market for quick and purely economic return, or those that entered under the current NOP who resist change to the status quo. The real test of the industry will be how carefully we preserve the trust we enjoy from consumers and how hard we work to create solutions that represent consensus positions of all stakeholders.

*** Robynn Shrader is CEO of the National Cooperative Grocers Association (robynn@ncga.coop).