by Deena Shanker

An aerial photo from August 2014 shows
six hen houses, several with two floors,
and a seventh under construction at the
Green Meadow site in Saranac

Big Agriculture may see a broader threat in new government regulations. Congress comes to the rescue.

A decade-plus effort by organic farmers, animal welfare advocates, and consumer groups to guarantee humane treatment of farm animals in the burgeoning organic food industry could be derailed this week by a one-page rider slipped into a congressional appropriations bill.

The law would eliminate all funding for a stricter new regulation proposed by the Obama administration intended to guarantee that the organic-in-every-respect egg is, in fact, as advertised.

Even though it still makes up just a tiny fraction of the overall egg market, the growth in organic egg sales has been nothing short of explosive. From 2014 to 2015, when total egg sales in the U.S. were down 1.1 percent, organic egg sales increased an astonishing 119.8 percent, according to data from Euromonitor, proving that consumers will indeed pay a premium for what they think is a better product.

Big Agriculture noticed long ago that a lot of money could be made with the organic label and dived right in. What makes organic eggs any different than, say, “cage-free”? Right now, because of vague regulations, the only real difference is generally that organic hens are raised with USDA-certified feed and no antibiotics.While current laws require that these hens have access to the outdoors, and consumers often believe that they do, many never step foot outside. That’s because some organic egg producers provide access only to a screened-in porch, often on pavement, a practice taken up bylarge-scale industrial farming operations producing a disproportionate amount of the organic eggs on the market.

If you thought all those organic eggs in the supermarket cooler are the product of happy chickens running around idyllic family farms in Vermont, think again.

The new rules by the U.S. Department of Agriculture would clarify the old ones, specifying that outdoor access must include soil (as opposed to asphalt), open air without a roof, and no more than 2.25 pounds of bird for every square foot of outdoor space. Ninety-five percent of organic egg producers are already following the proposed rules, said Nate Lewis, senior crop and livestock specialist at the Organic Trade Association.

But the 5 percent who haven’t followed the USDA’s lead just happen to sell one in four organic eggs on the market while, of course, benefiting from the price premium that comes with the organic seal, even if their practices circumvent the organic spirit.

“We wrote ‘access to outdoors,’ but somehow the words we tried weren’t clear enough,” said George Siemon, chief executive of Organic Valley, the largest U.S. cooperative of organic farmers, with more than 1,800 members producing dairy, eggs, and produce and a key advocate of the 1990 Organic Food Production Act. “We’ve had a bunch of people start up egg houses that have a little screened porch,” he said. “We had nothing like that in mind.”

Opposition to the new standards isn’t just about eggs. The proposed update includes stricter requirements for the production of poultry, beef, pork, and dairy as well. But it’s the impact on the egg industry that has drawn the loudest complaints. Industrial organic egg production, an ironic phrasing if ever there was one, has been well documented by organic watchdog Cornucopia Institute, which released the second edition of its report, Scrambled Eggs, in December. It points to such producers as Herbruck’s Poultry Ranch as an example of inadequate outdoor access. (Cornucopia also maintains a regularly updated Organic Egg Scorecard to help consumers find what it said are the best options.)

Greg Herbruck, executive vice president of the company, stands by his housing system. “A porch is an approved method, approved by the USDA and National Organic Program,” he said. “We have been certified every year.” His company’s Green Meadow site in Saranac, Mich., will eventually house 2 million hens in 18 houses and currently holds about 1.7 million to 1.8 million hens.

Herbruck also disputes the OTA’s numbers, saying his company alone has at one point or another produced almost 20 percent of all organic eggs sold in the U.S. His company is no longer represented by the OTA, he said. “We were members, and we were always told they were neutral on porches, but that’s not where they are today.” (OTA said it first took a position on porches in 2011, and it opposed them.)

The USDA’s proposed rules have been a long time coming. In 2002, the National Organic Standards Board, a committee that includes farmers, processors, retailers, and environmentalists, overwhelmingly approved recommendations to clarify the 2000 rules, specifically stating that “bare surfaces other than soil (e.g. metal, concrete, wood) do not meet the intent of the National Organic Standards.”

But that wasn’t binding—it had the legal effect of a suggestion. So in 2011, after years of debate and input from stakeholders, the board put out more specific recommendations that would guarantee the hens a minimum of 2 square feet each, both inside and outside, and access to soil.

Many large egg producers, including Herbruck’s, balked.

Writing to the NOSB in November 2011, Herbruck stated, “We fear these changes will limit consumer access to organic products rather than encourage growth of the organic market.” The requirements for soil-based, uncovered living areas, he said, both “assaults hen health” and “greatly increase[s] the risk to public health.” Similar concerns had been raised in 2010 by a group of commercial-size egg farms, including Herbruck’s, as well as Cal-Maine Foods, Kreher’s Farm Fresh Eggs, and Oakdell Egg Farms. An industry group, United Egg Producers, declined to comment on the proposed welfare guidelines.

All these points are disputed by proponents of the new rules. “If any producers choose not to update their production practices to fall in line with the proposed Organic Livestock and Poultry Practices, there are numerous farmers eager to fill any gap in supply that may occur with some producers exiting the organic market,” Lewis said.

Animal welfare groups also see the new rule as an improvement. Farm Forward, the ASPCA, and the Animal Welfare Institute, for example, have all expressed their support. “No system is perfect,” said Suzanne McMillan, content director of ASPCA’s farm animal welfare campaign. “[But] the rules are a significant leap forward for animal welfare.”

As for the risk to public health, Lewis points out that the Animal and Plant Health Inspection Service has reviewed the proposed rule and concluded that there wouldn’t be a negative impact on biosecurity related to avian flu or other poultry diseases. Herbruck said the veterinarians he has spoken with disagree.

After considering all these concerns, the USDA presented the rule to the public for comment on April 7, 2016. The opportunity to weigh in is set to close on June 13.

But some groups, including the National Cattleman’s Beef Association and the National Pork Producers Council, have filed requests for more time.

“We have not been a part of this process in the past and have requested additional time to review the standards being put forward,” an NCBA spokesperson said. (The NPPC didn’t respond to a request for comment.)

“If this proposed rule has implications for an industry and that industry’s trade association is learning about it for the very first time in a notice for proposed rulemaking, that industry better get a new set of representatives because they’re not doing their job,” said Cary Coglianese, a law professor at the University of Pennsylvania  and director of the Penn Program on Regulation.

The rule’s supporters see this as an election-year attempt to get it kicked down the road to the new administration, which may be less friendly to organic farmers. While the proposed regulation would have a direct impact on organic beef and pork farmers, that’s not what these concerns are about, said Andrew deCoriolis of Farm Forward. “They’re less worried about the small percent of organic operators they represent,” he said. “They are more concerned with having [animal welfare] standards be part of a federal program.”

The attempt to delay the publication of the rule, though, won’t be necessary if the rider passes. It said funding can’t be used “to write, prepare, or publish” the final rule on organic animal welfare, or “to implement or enforce the proposed rule” pending an independent economic assessment. (A copy was provided by the rider’s opponents. The spokesperson for the Senate Appropriations Committee declined to comment.) If it passes the committee, and then the House and Senate, and is signed into law by the president, any progress would be effectively stopped, said Coglianese. “This sort of rider is not that uncommon with rulemaking,” he added.

The USDA, for its part, is standing by its embattled proposal. “Strengthening standards for organic livestock and poultry will ensure that we meet consumers’ demand for transparency and integrity,” the agency said in a statement. “The proposed rule meets the recommendations of the National Organic Standards Board and USDA’s own Inspector General, setting needed standards for organic animals … and establishing a level playing field for all producers.”

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