Montana Organic Association
by Barry Flamm, Former Chair of the National Organic Standards Board,
Board Member of The Cornucopia Institute
and MOA Lifetime Member

 Barry Flamm
Barry Flamm

The original and current purpose of the Organic Food Production Act of 1990 (OFPA) is to bring integrity and order to organic food production and marketing by establishing uniform standards. The Act, established by the U.S. Congress, and the implementing regulations, adopted by the U.S. Department of Agriculture (USDA) is driven by the organic community’s desire to ensure that “organic” is something special and help assure a continuing organic community role in the process. Under the Act, the Congress established the National Organic Standards Board (NOSB) and gave it very important duties. In its Report (1990) on the bill, the Senate Agriculture Committee stated that,  “ The Committee regards this Board as an essential advisor to the Secretary (of Agriculture) on all issues concerning this bill and anticipates that many of the key standards will result from recommendations by this Board….(it) is generally responsible for advising the Secretary on all aspects of the implementation of OFPA, specifically, the Board is responsible for evaluating substances for inclusion on the Proposed National List.”

The NOSB is intended to be the voice of the organic community and to represent its broad interests. The 15-member Board is comprised of four organic farmers, two organic handlers, one organic retailer, three with expertise in areas of environmental protection and resource conservation, three who represent public interest or consumer interest groups, one with expertise in fields of toxicology, ecology or biochemistry and one certifying agent.

The Board has served a vital role from the very beginning of USDA’s organic program, holding meetings and consulting with the public in developing recommendations for implementing the standards. When these recommendations were ignored by the USDA, there was unprecedented public response leading to the rule’s rewrite, excluding such undesirable features as allowing the use of genetically modified organisms (GMOs).

To guide its important activities, the NOSB developed a Policy and Procedures Manual (PPM). In keeping with the desire for openness, the policies were developed with full public review and with an opportunity to comment before a Board vote on the proposed procedure. The policies and procedures were reviewed and improved over time and was overseen by the Policy Development Committee of the Board. The six Standing Committees did much of the actual work for the Board. Their proposals were submitted for public review and comments in writing and presentations were shared at open public meetings, which in recent years have been held semi-annually at different locations around the country.

These were extraordinary events with valuable information and interactions that led to better decisions. Unquestionably, Board members put in many hours of hard, difficult work over their five-year terms in service to the organic community.

The National Organic Program (NOP) was established in the Agricultural Marketing Service (AMS) within USDA to administer the OFPA requirements. Its staff was very small for many years until political change occurred in 2008, when a substantial increase occurred along with newly declared USDA support for organic and a pledge to “organic integrity from farm to table—consumers trust the organic label.” Collaboration and working relations between NOSB and NOP grew with apparent benefits to the organic community.

In 2013, all began to change without public notice or opportunity to comment or consult with the NOSB. NOP took away the Board’s ability to develop its work plan and agenda, thus severely limiting its ability to provide independent advice to the Secretary as mandated by law. The NOP effectively disbanded the Policy Development Committee (aka sub-committee) and indicated that the Policy and Procedures Manual was no longer in force, but would be used at the discretion of the program. The most immediate and serious result was that in September of 2013, Deputy Administrator McEvoy announced dramatic changes in the approval process for synthetic and non-organic materials allowed on the National List for use in organic food and agriculture. The changes to the “sunset” provision were in conflict with the PPM and were implemented without consultation with NOSB, the organic stakeholders or the public.

The fall 2013 NOSB public meeting was cancelled during the federal government shutdown, thus the public did not have that opportunity to express concerns in person on these actions by the NOP. At the April 2014 meeting, the Deputy Administrator announced that he was co-chairing the meeting, thus intruding on the independence and authority of the NOSB and limiting discussion on the serious changes that had been made.

No stronger condemnation of NOP’s “sunset” action could be stated than that of the principal authors of the Organic Food Production Act. On April 24, 2014, Senator Patrick Leahy and Representative Peter De Fazio wrote Secretary Vilsack to raise concerns about the sunset policy change “which we believe to be in conflict with the letter and intent of the statute. We are particularly concerned that such a substantive change was made without the benefit of full notice and comment.” They reminded the Secretary that OFPA “establishes the overall principle that, in order for any product to be labeled as organic it must be produced and handled without the use of synthetic chemicals.” The law recognizes there may be a need for temporary exemptions, thus it provided for a very thorough review process whereby certain synthetic chemicals could be permitted for use, but would sunset after five years. The process requires the NOSB to review the material based on a stringent list of scientific and market considerations and analyze its impact on human health and the environment, compatibility with organic principles and the availability of alternatives. They also pointed out that “the law specifies that two thirds of the full NOSB must vote in favor of allowing the synthetic material to be used.”

Leahy and De Fazio expressed “great concern that we learned about a policy change implemented by your agency (USDA) which turns the sunset policy of OFPA on its head to create a presumption that all synthetic materials on the National List will be automatically renewed at the five year sunset mark and to establish a high hurdle (two thirds vote) to remove from the list.” They strongly stated, “We are urging you to reverse this policy change.”

Also on April 24, 2014, former past chairs of the National Organic Standards Board, Jim Riddle – Chair ’05, Jeff Moyer – Chair ’09, and myself – Chair ’12, wrote Secretary Vilsack to express “grave concerns regarding recent changes unilaterally enacted by the USDA’s NOP that significantly erode the authority, independence and input of the NOSB.”

The major objections expressed in the letter were: arbitrary announcements that dramatically change the approval process for synthetic and non-organic materials allowed for use in organic food and agriculture; changes in the sunset procedures required by law and reversing years of accepted procedure employed by the NOSB; and NOP intruding on the independence and authority of the NOSB by controlling work plans and agendas and co-chairing Board meetings, thus interfering with the important duties of listening to public concerns and interests and providing meaningful input to the Secretary. Lastly, we expressed dismay that “the disbanding of the NOSB Policy Development Committee (aka sub-committee) was again done in an arbitrary, unilateral and disrespectful manner by the management of the NOP with no public discussion or consultation. This committee carefully and seriously charted a path of practices employed by the NOSB that was crafted in public and adopted with input from all NOSB members and organic stake holders…”

We appealed to the Secretary to intervene in this matter and suspend the policies enacted by Miles McEvoy.

Instead of addressing the concerns of Senator Leahy and Representative De Fazio, the former NOSB Chairs and others, USDA/ NOP tried to cement the radical changes on May 8, 2014, through an amendment to the NOSB Federal Advisory Board Charter, which also improperly assigns authorities to the USDA to terminate NOSB, a statutory  Board with duties clearly enunciated.

In response to these USDA actions, twenty organizations have, pursuant to the Administrative Procedures Act, petitioned amendments to the 2014 NOSB Charter that: 1) accurately reflect the continuing and non-discretionary duties of the NOSB and (2) accurately reflect the mandatory, continuing and interminable status of the NOSB.

The 11-page petition explains the need for the amendments and concludes by stating that, “ recent actions on the part of the USDA have undermined the carefully crafted and contemplated OFPA framework and balance of community representation…” The signatories to the petition are: Beyond Pesticides, Organic Seed Growers and Trade Association, Center for Food Safety, Midwest Organic and Sustainable Education Service, Maine Organic Farmers and Gardeners, The Cornucopia Institute, Northeast Organic Dairy Producers Alliance, La Montanita Coop NM, Food and Water Watch,
Equal Exchange, Northeast Organic Farming Association Interstate Council, NE Organic Associations of Connecticut, Massachusetts, New Hampshire, New Jersey, New York, and Vermont, Organic Consumers Association, Organically Grown Company and PCC Natural Markets. As there was limited time to reach out to more interested stakeholders, the petition may be re-opened soon for others to sign.

The issues may sound complicated, but it really boils down to two questions: 1) Does the organic community and public want a strong NOSB as prescribed by OFPA? 2) Does the organic community and the public believe and want the implementation of the overall principle of OFPA that for any product to be labeled organic it must be produced and handled without the use of chemicals with only temporary exemptions allowed and then only after stringent review?

Will there now be a community uproar as occurred in the nineties when USDA tried to push through unsuitable regulations?

We hope to hear your voices loud and clear.

Barry Flamm
MOA Lifetime member, former MOA Board Member, Reciepient of the MOA Lifetime of Service Award 2006, NOSB Board Member January 2008 – January 2013, NOSB PDC Chair 2008 – 2011, and NOSB Board Chairman 2012.

COMMENTS on Demise of the National Organic Standards Board?

Jay Feldman (Executive Director of Beyond Pesticides, NOSB member 2010-2014, chair of NOSB Crops Committee, 2012-2013) comments that past and future success of the organic label and related food production practices relies on a strong collaboration among all the stakeholders. It is absolutely critical that concerned organizations and individuals make their views known to their elected representatives in Congress and the Secretary of Agriculture. Beyond Pesticides has set up a ‘Save Our Organic’ webpage that makes it easier to send a letter to members of Congress and Secretary of Agriculture Tom Vilsack. While we encourage everyone to send their own personal message through this webpage, a form letter can be sent from the site at

We’re seeking through the petition an acknowledgment by the Secretary of Agriculture that Congress set up the NOSB to operate with clear statutory mandates that supersede USDA authority. In this respect, the petition addresses a narrow issue of the Board’s charter and Congress’ determination that it exist as a permanent body, not subject to the discretion of the Secretary of Agriculture. This is a clear legal requirement that is undermined by the 2014 charter language, which misrepresents (and contradicts previous charters) the Board as a time-limited body with narrowed responsibilities subject to the Secretary’s discretion. The petition, citing legal requirements, requests that the Secretary correct the charter language to reflect the ongoing and permanent nature of the Board. However, the limited issues of the petition represent the larger USDA disregard for a range of mandatory duties of the Board that are established by the Organic Foods Production Act and may require further legal action.

The organic sector requires committed organic consumers to thrive or, in fact, exist. That is why the NOSB has recognized historically in its Policy and Procedures Manual that organic consumer expectations are critical to the viability of the organic label. The organic standards, rigor of review of allowed materials (including synthetic substances), independence of the National Organic Standards Board, transparency of the decision-making process, and public involvement are key elements of organic label integrity and consumer trust in the organic seal as a meaningful symbol.

Organic consumers first must understand how important their voice is in the organic policy arena. While people can get alienated from governmental decision making, organic consumers must recognize that the organic label and the history of policy that supports it was formed with critical consumer influence, which forced the prohibition of genetically engineered organisms, irradiation, and sewage sludge –practices USDA originally proposed allowing. Unless consumers make their voice heard by contacting their members of Congress and Secretary of Agriculture Tom Vilsack (see above) to express their opposition to changes (announced in the September 16, 2013Federal Register (78 FR 56811, National Organic Program-Sunset Process) and in the USDA Organic Insider on March 6, 2014), ultimately the organic choice in the marketplace will not mean as much as it means today and could mean in the future. People need to spread the word. Food coops and retailers should speak out on behalf of their members and customers by contacting decision makers and educating shoppers.

Jim Gerritsen (President of the Organic Seed Growers and Trade Association and owner/operator of Wood Prairie Farm in Maine commented that organic farmers and organizations need to educate each other and the public about the issues that have led to the erosion of the integrity of the NOSB. He emphasizes that the organic community needs to hold those agencies and individuals responsible and demand accountability. He also urges each of us to get involved and have our voices heard or we risk losing our livelihood and community.

Gerritsen sites the farmer, novelist and poet, Wendell Berry, quote: “We don’t have a right to question whether we’re going to succeed or not. The only question we have a right to ask is what’s the right thing to do? What does this earth require of us if we want to continue to live on it?”

Liana Hoodes (Director of the National Organic Coalition (NOC)) shared several items about sunset and other items related to the issue of USDA not honoring the mandate of the NOSB.

1. Two letters we sent to Miles McEvoy last fall following the “sunset decision”
2. NOC’s position on
3. For a more comprehensive review of the history of sunset and the current policy, see NOC member Beyond Pesticide’s website:
4. Another recent action by USDA that changes the NOSB charter from a mandatory to a discretionary committee caused many NOC groups to sign on to an administrative petition asking for a reversal of this policy.

I think it is fair to say that many or most agree that there was something not working with implementation of sunset policy in the past. What NOC and others believe is that the wholesale change by USDA/NOP does nothing to fix the problems, and may make them worse, while setting a foundational policy (how synthetics are continuously reviewed) on its head.
In terms of what happened at the NOSB meeting regarding sunset for instance, it is not clear that this new policy actually makes anything easier for NOSB or NOP — in fact it may increase the workload. In part because of confusion in the new policy that any materials would ever come off the list, the NOSB was reticient (at the April meeting) to approve materials, and sent quite a lot back to the committees for more information.

NOC is currently engaged in an exercise of seeing if we can identify the areas of the problems in the old sunset policy and how they could be fixed. In fact, when we have a draft, we’d be interested in input. We’re not sure of a timetable at this point.

Nathan Brown (Almatheia Dairy in Belgrade, MT and Chairman of the Board MT Organic Assn (MOA)) would like to see the changes made by USDA on the Sunset Policy reversed and the five-year review of prohibited synthetic substances put back into place. This is an issue that our (MOA) membership should be aware of and I will do my best to keep myself and our membership informed on this as best I can.

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