An Open Letter From Jim Riddle
(Mr. Riddle is an organic farmer, inspector and current Chair of the NOSB)

Dear friends and colleagues,

I am very concerned by the fractured state of the organic community.

I have farmed organically since 1980 and been an organic inspector since 1986. In 1991, I agreed to serve as founding chair of the Independent Organic Inspectors Association (IOIA). I helped develop standardized organic certification and inspection templates and training materials that are used worldwide today. Since 1991, I have also served on Minnesota’s organic advisory board, where we originated the organic certification cost share program and helped institute organic transition incentives. In 1997, I took the lead in writing detailed comments responding to USDA’s disastrous first Proposed Rule. I co-authored the Organic Trade Associations American Organic Standards in 1999, and compiled OTA’s comments on the second Proposed Rule. I have served on the National Organic Standards Board since 2001, developing the NOSB’s principles of organic production and handling, compatibility criteria, standardized Board procedures, and numerous recommendations to improve our regulation. My roots in the organic community run deep.

We now find ourselves in a time of unprecedented division. The food
industry and OTA have rushed to Congress with a flawed proposal to significantly alter the Organic Foods Production Act (OFPA). Predictably, there has been an enormous outcry from organic consumers, farmers, and public interest groups. A house divided will not stand.

It is important to put things in perspective before we can heal our divisions. OFPA did not prohibit the use of synthetic substances in organic food processing by accident. In 1990, organic processors, led by Mark Retzloff, formerly of Horizon Organic and now with Aurora Dairy, insisted that no synthetics be allowed. During the 1990’s, as the NOSB crafted recommendations and considered allowed materials, they were assured by USDA that the statute was ambiguous, giving USDA the authority to allow synthetic substances recommended by the NOSB. Synthetic substances were allowed in the First, Second, and Final Rules.

When the Final Rule was issued in 2000, Arthur Harvey complained loudly to USDA, OTA, IOIA, and others that the Rule violated the statute. Very few people, including me, wanted to listen. We understood that every other organic standard in the world, such as IFOAM, EU, Codex, and JAS, allowed the limited use of approved synthetic substances. Arthur persisted, and the First Circuit Court of Appeals agreed with his reading of OFPA on three of nine counts.

When the court ruling was issued, OTA convened a “wise counsel” to assess our options. I participated in those early discussions. The choices were to embrace the court ruling and further differentiate organic from conventional products by minimizing market disruption through regulatory changes, or to change the law to allow the continued use of synthetic substances. OTA chose the latter.

Discussions ensued between OTA and representatives of public interest groups, some of who had signed on as amici in the Harvey v. Veneman suit. Originally, the intent was to pursue a “two-track” approach. The first track was to develop proposed regulatory changes to respond to the court order while minimizing damages to the organic sector. The public interest groups took the lead, developing a petition for
rulemaking that was widely circulated for comment within the community and submitted to USDA in late June 2005.

OTA took a different approach on the second track, which was to develop proposed legislative language to restore the “pre-Harvey status quo.” Despite repeated requests, OTA’s lawyer, Jay Friedman of Covington & Burling, failed to provide draft language for consideration. After several meetings, OTA pulled out of the process and pursued a legislative strategy. OTA’s draft OFPA changes were kept secret until
released by Congressional staff, after they had been submitted to Congress by OTA.

While OTA claims that the proposed OFPA changes are mere “clarifications” that restore the status quo, a close analysis reveals that the changes are substantive and do not restore the status quo. Below is an analysis of the status quo, OTA’s proposed changes, and alternative ideas proposed by public interest groups (NGOs). The topics are grouped in three areas: dairy herd conversion; synthetic substances allowed in the processing of organic products; and commercial availability of organic agricultural ingredients.

Dairy Herd Conversion

Status Quo — Presently, dairy herds can be converted to organic production either by feeding and managing cows organically for one year prior to the production of organic milk, or by converting entire herds to organic by managing them organically for one year and feeding at least 80 % certified organic or third year transitional feed for 9 months, followed by 3 months of feeding 100% certified organic feed prior to the production of organic milk. Once converted, farms that use the 80/20 option are required to feed and manage all replacement animals organically from the last third of gestation.

As a result of the Harvey ruling, dairy farms have until June 4, 2006, to convert their operations to organic using the 80/20 provision. Certified dairy processors have until June 9, 2007, to remove non-compliant products from the market.

OTA Proposal — OFPA would be changed to allow the feeding of farm-grown, third-year transitional feed, so that milk could be sold as organic as soon as the land qualifies for organic certification. Replacement animals could be routinely fed conventional feed and treated with prohibited substances, including antibiotics and hormones, up to one year prior to the production of organic milk, during which time
they would need to be fed and managed organically.

Alternative Ideas — NGOs would also allow the feeding of farm-grown, third-year transitional feed, so that milk could be sold as organic when the land qualifies for organic certification. In addition, NGOs would require that all farm-raised and purchased replacement animals be fed and managed organically from the last third of gestation once the farm has converted to organic production, regardless of how the farm converted.

Synthetic Substances

Status Quo — The regulation currently allows the use of synthetic substances only after they have been recommended by the NOSB and placed on the National List of Allowed and Prohibited Substances. The regulation contains specific criteria for the evaluation of synthetic substances used in processing, but the Court ordered removal of the criteria, since synthetic substances will no longer be allowed for the processing of “organic” food under OFPA. Certified operations have until June 9, 2007, to remove non-compliant products from the market.

OTA Proposal — OTA has introduced language that would allow the use of synthetic ingredients in the processing of “organic” food. OTA is silent on the evaluation and listing of synthetic processing aids and food contact substances. OTA’s language calls for deletion of an OFPA section containing the word “substances.” It is unclear if synthetic substances such as processing aids and food contact substances would be allowed with no restrictions and no review by the NOSB, or if their use would be
prohibited. OTA has not called for placement of the vacated evaluation criteria in the statute.

Alternative Ideas — NGOs are calling for reinstating the language requiring review of all substances, rather than ingredients, for inclusion on the National List. NGOs propose that specific categories of allowed synthetic substances appear in OFPA, and that the vacated evaluation criteria currently in the regulation be retained and transferred to OFPA.

Commercial Availability

Status Quo — Under the present system, if an agricultural ingredient is not available in an organic form, an accredited certifying agent can allow a processing operation to use a non-organic form, if the processor can demonstrate that an organic form is not commercially available. The Court ordered that only those agricultural ingredients that have been reviewed and recommended by the NOSB and appear on the National List may be considered for commercial availability determinations.

While accredited certifying agents have been directed by USDA to discontinue commercial availability determinations of ingredients not on the National List, certified operations have until June 9, 2007, to remove non-compliant products from the market.

OTA Proposal — OTA has proposed allowing USDA to make expedited determinations of commercial unavailability of organic agricultural products due to natural disasters and crop shortages for placement on the National List for up to twelve months.

Alternative Ideas — NGOs do not support a change in OFPA to give the USDA new commercial availability authority. Instead, NGOs advocate setting this issue aside for further development, while allowing the NOSB and USDA to establish petition procedures and evaluation criteria under existing statutory and regulatory authority.

An Opportunity for Resolution

During the week ending September 23, 2005, the U.S. Senate adopted language in the Agricultural Appropriations bill calling for USDA to study the impacts of the Court ruling and report its findings in 90 days. The study language has been adopted to give the organic community time to reach consensus on changes to OFPA. Inclusion of the study language also allows for replacement language amending OFPA to be introduced in Conference Committee.

While I have attempted to remain open-minded regarding regulatory vs legislative remedies, I have come to the conclusion that changes that strengthen OFPA are in order.

The organic community, as represented by OTA and public interest groups, has a unique opportunity to heal divisions and strengthen the Organic Foods Production Act. It is time to set aside past differences and implement changes that can be supported by organic farmers, processors, retailers, and consumers.

Jim Riddle
Organic Policy Specialist
Organic Independents
31762 Wiscoy Ridge Road
Winona, MN 55987
Ph/fax: 507-454-8310
Cell: 507-429-7959

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