Lax labeling claim gains steam in court
By Andrew Martin
Tribune national correspondent
August 11, 2005
HARTFORD, Maine — Arthur Harvey, an organic blueberry farmer, lives in a 168-year-old house with an outhouse out back and a solar panel on the roof, which he uses to power his computer.
He doesn’t care for pesticides or herbicides, believing many of them aren’t necessary and possibly are dangerous, and he decries modern plumbing because it fails to recycle the nutrients in human waste, which when composted properly can be turned into fertilizer.
Despite his off-the-grid lifestyle, Harvey has used the most conventional of means to turn the nation’s booming organic industry on its head.
Frustrated by the federal rules that govern what foods can be labeled organic, Harvey, representing himself, sued the U.S. Department of Agriculture in 2002. He argued that the regulations were far more lax than the original organic legislation intended. While his lawsuit was tossed out of federal district court, Harvey won several crucial points on appeal earlier this year.
The appellate court agreed with Harvey that dairy farmers must feed their cows 100 percent organic feed in the transition year before their milk can be sold as organic, rather than 80 percent organic, 20 percent conventional feed.
And, in a decision that prompted doomsday warnings from some food companies, the court clamped down on manufacturers’ use of non-organic agricultural products like oils and spices, and eliminated use of such synthetic substances as vitamins and bleach in organic processed food products.
As a result, some of the nation’s largest organic companies may be required to reformulate their products or stop labeling them as organic, all thanks to Harvey.
“If consumers find out that their food is becoming more organic, I think they’ll be willing to spend an extra 25 cents,” said Harvey, 73, who dismisses talk that his lawsuit will weaken the organic industry. As an example, he said Newman’s Own Organics, a spinoff of a food company founded by actor Paul Newman, uses a synthetic lye on its pretzels to make them shiny. Because of the lawsuit, the company may have to stop using the lye or stop labeling the pretzels as organic.
“Is Newman’s going to go under because their pretzels won’t be shiny? I don’t think so,” Harvey said.
Before they scrap their recipes or change their labels, however, organic food manufacturers say they are waiting to see how the Harvey lawsuit plays out in Washington. The National Organic Standards Board, which advises the USDA on organic issues, is meeting Monday in Washington to begin discussing the fallout from the lawsuit, and the agency is planning to devise new regulations to address Harvey’s grievances.
But many food manufacturers and organic dairy companies would like to keep the organic rules the way they are, and they are hoping Congress will revisit the Organic Foods Production Act of 1990. The Organic Trade Association, for one, hopes Congress will pass a clarification to the original legislation that would maintain the existing program, said William Friedman, a Washington attorney who represents the group.
While the outcome remains uncertain, the fallout from the Harvey suit is the latest example of the growing pains in the organic industry, which has expanded at an annual 20 percent clip in recent years. The industry was started primarily by counterculture farmers who grew organic produce, but it has grown into an annual $12 billion business in the U.S. that has turned one-time hippies into millionaires and attracted major food companies including Tyson Foods, Dean Foods and General Mills.
But as the industry has grown, so have tensions between small, idealistic purists like Harvey and larger farmers and companies eager to expand organic beyond a lucrative but relatively small niche.
“Maybe our politics and our industry is maturing in the same way as everybody else’s does,” said Kathleen Merrigan, who wrote the Organic Foods Production Act of 1990 while working as an aide to Sen. Patrick Leahy (D-Vt.) and now is an assistant professor at Tufts University. “So instead of sitting around the table making decisions, everybody starts hiring lawyers. . . . We’re doing public policy by court decree, and that is really sad.”
The Organic Foods Production Act was written when the organic industry was made up mostly of organic farmers, but few organic food manufacturers. As the industry expanded to include organic dairy and processed foods, the USDA created rules to accommodate that growth.
Currently, products that are 95 percent organic are eligible for the USDA’s organic seal, and products with at least 70 percent organic ingredients can advertise that they are made with organic ingredients.
If an ingredient isn’t available in organic form, the department allows manufacturers to use up to 5 percent non-organic or synthetic ingredients and still label the product organic.
But the appellate court ruled that the USDA could not grant a blanket exemption to non-organic agricultural products–if the organic equivalent isn’t available–unless they were approved by the agency after a public review process. Moreover, the court ruled that synthetics cannot be used at all if a product is to be called organic.
Several organic manufacturers said they likely would be forced to use the less desirable “made with” organic ingredients label if the Harvey ruling is upheld, a decision that ultimately may hurt organic farmers because there might be less demand for their products.
“It’s just created incredible turmoil for us,” said Nancy Hirshberg, vice president of natural resources at Stonyfield Farm, an organic yogurtmaker.
She said organic yogurt includes small quantities of non-organic inulin, which is made from Jerusalem artichoke root and increases calcium absorption, and synthetic pectin, a thickening agent that is made from fruit peel.
Because no organic substitutes exist for either product, she said Stonyfield may be forced to label its yogurt as “made with” organic ingredients rather than organic. If that were the case, she said the company probably would only pay for organic milk, which makes up more than 70 percent of the total, and buy non-organic sugar and fruit because they are less expensive.
Annie Christopher, founder and president of Annie’s Naturals, said she may be forced to label her salad dressings as made with organic ingredients because they contain a miniscule amount of synthetic xanthan gum to give them consistency. “You are talking about a product that is one-tenth of a percent to one-quarter of a percent of the formulation,” she said.
Peter Meehan, chief executive and co-founder of Newman’s Own Organics, said most manufacturers dip their pretzels in a synthetic lye bath briefly because it turns the pretzels brown and shiny during baking. Without it, “they look like the palest breadsticks you’ve ever seen. It just doesn’t work.”
Harvey, who also does organic inspections, said he was generally pleased with the outcome of his lawsuit but wishes, in retrospect, that he would have had more legal expertise, in the hope that the appellate court might have upheld more of his claims against the USDA.
“Nobody said that every single product should be available with an organic label,” he said. “If you have a standard, you have to draw the line somewhere.”