New Farm Bill Weakens Organic Regulatory Oversight

December 13th, 2018

Congress Agrees with Cornucopia: USDA Undermined Organics and Violated Law

The 2018 Farm Bill is one of the biggest pieces of legislation of the year—but getting it off the ground has been a challenge for the divided Congress. With many Farm Bill programs already expired, or set to expire by the end of the year, the passage of the legislation was time-critical.

Signing the Conference Report
for the 2018 Farm Bill
Source: House Agriculture Committee Democrats

The final text from the conference committee was released Monday, December 10. By Wednesday, both houses of Congress had passed the legislation, by strong bipartisan margins, and sent it to the President’s desk for his signature.

In addition to perennially contentious funding for food stamps and farm subsidies, the bill contains most of the logistics that keep the USDA wheels turning.

In an affront to the organic farming community, this Farm Bill codifies a number of contentious changes to the National Organic Standards Board (NOSB). These provisions weaken and confuse the NOSB’s ability to represent the public and advise the USDA Secretary on organic matters.

The NOSB was set up by Congress as part of the Organic Foods Production Act of 1990 (OFPA) as a mechanism to insulate organic rulemaking from the influence of corporate lobbyists. OFPA also set up a National List of Allowed and Prohibited Substances (National List) for organic agriculture and a process by which the NOSB would add and remove materials from it.

Materials would sunset, or be removed automatically from the National List, after five years, and it would require a supermajority of the NOSB to renew a sunset substance. Congress intended this process to be an incentive for innovation in organics. In 2013, the USDA’s National Organic Program unilaterally announced that it would now require a supermajority to remove materials from the list, turning sunset on its head.

The final 2018 Farm Bill provides statutory cover for that controversial change. Cornucopia strongly objects to this addition which will make it easier for corporate agribusiness to maintain the use of synthetic compounds in organic production and handling.

Mark A. Kastel, Cornucopia’s executive director said, “This voting procedure had already been—in our opinion, illegally—enacted through order by former National Organic Program director, Miles McEvoy. It was then rubber-stamped during a 2013 NOSB meeting.”

Cornucopia, along with 14 other stakeholders, sued the agency in federal court in 2015 to overturn the unprecedented fiat by Mr. McEvoy. In the past, all substantive changes to the procedures that the NOSB operated under were implemented by the board after consultation with the public (subsequent to required legal noticing in the Federal Register). The USDA prevailed on an initial argument concerning proper public notice. The core issue of whether or not Congress required materials to sunset every five years, needing a supermajority to resurrect, was never adjudicated.

“Vindicating our original legal premise, that the USDA had no legal authority to do away with sunset safeguards, Congress has now chosen to codify the heretofore illegal activity,” continued Kastel. “Unfortunately, this provision in the Farm Bill makes any further legal challenge moot.”

Another troubling Farm Bill change to NOSB administration is how Board members are selected. Congress originally intended to balance corporate influence by ensuring the advisory panel had a diverse makeup. A new Farm Bill provision will allow employees of corporate agribusinesses to occupy seats previously reserved for those who “own or operate” organic farms.

The Cornucopia Institute had also sued the USDA over this issue on behalf of two working family farmers in Wisconsin and Ohio. They had been passed over when employees of corporate agribusiness were appointed to “farmer seats.” Based on material obtained through the Freedom of Information Act, and other documentary evidence, Cornucopia contended that employees from Driscoll’s, Arkansas Egg, and Organic Valley were illegally appointed to the board.

The controversy never received its day in court. Using taxpayer funds, lawyers from the USDA again succeeded in having the lawsuit dismissed on procedural matters.

“The new Farm Bill now legalizes faux farmers serving on the board, marginalizing the voice of legitimate, independent working farmers, who truly have skin in the game,” said Kastel. “We are concerned about the future effectiveness of the NOSB in speaking for the farm community.”

Despite the bad news about the NOSB provisions, other areas of the final bill support some of Cornucopia’s ongoing concerns for the organic marketplace. In particular, the final bill addresses the issue of fraudulent organic imports.

Cornucopia has reported extensively on import fraud, exposing the glaring loopholes in enforcement available to bad actors. The new Farm Bill includes funding for much-needed technological advances in USDA data collection surrounding shipments of organic agricultural products flowing into the United States. Specifically, this Farm Bill establishes a mandatory import certificate and tracking system and a working group of federal regulators on imports issues.

“The bill’s provisions on imports are positive steps in enhancing National Organic Program oversight,” said Anne Ross, Cornucopia’s lead policy analyst on imports issues. “The effectiveness of these provisions, however, will ultimately be determined by the vigilance of USDA enforcement and whether the proposed rule authorized by this bill casts a wide enough net to capture fraudsters operating throughout the supply chain.”

Many of the programs under the Farm Bill’s conservation title were reauthorized through 2023. This includes continued funding for the Conservation Stewardship Program. These provisions support farms, including many soil-based organic farms, that produce food in concert with natural ecosystems. Unfortunately, conservation as a whole saw disappointing cuts in funding. With conservation already making up a small portion of Farm Bill funding, this has potential to reverse some environmental protections.

[For more information on the conservation programs in the 2018 Farm Bill, Cornucopia recommends you follow the National Sustainable Agriculture Coalition’s work on that topic.]

Apart from the disastrous changes to the administration of organic rulemaking, the final bill has a number of wins for the organic farming movement, including increased organic research dollars, funding for certification cost share programs, and an overall increase in support for organic program administration and enforcement.

MORE:

Driscoll’s Carmela Beck receiving
the OTA “Member of the Year”
award at their annual
Capitol Hill lobby event
Source: OTA

Agribusiness employees serving on the NOSB, in seats reserved for stakeholders who “own or operate organic farms,” included Carmela Beck of Driscoll’s, the world’s largest distributor of berries. It should be noted that Driscoll’s does not grow organic berries but instead contracts for their production. In public testimony prior to her appointment to the NOSB, Ms. Beck stated that her role with the company was working as a grower liaison interacting with contract farmers.

After advocating on the Board for the propriety of certifying allegedly illegal hydroponic, soil-less production (Driscoll’s is a major hydroponic producer), Ms. Beck was recognized as “Member of the Year” by the industry’s largest lobby group, the Organic Trade Association.

The OTA, after the passage of the 2018 Farm Bill, released a statement concluding, “Organic Wins Big in Farm Bill.”

“You bet this was a big win for the OTA lobbyists,” said Kastel. “They had, de facto, taken over rulemaking on the NOSB with the help of former staff director, Miles McEvoy, and have now flexed their muscles in Congress to codify the previous corrupt and illegal activities.”

McEvoy “retired” and waltzed through the proverbial revolving door in Washington to work for CCOF, the largest certifier in the country. CCOF is a major OTA contributor, and it should be noted that, compounding conflicts of interest, CCOF also certifies Driscoll’s berries.

When the NOSB allowed two antibiotics (oxytetracycline and streptomycin) to be removed from approved use on trees after residues were found in fruit, an active OTA leader called the board vote “a travesty.” The OTA and their corporate members began, in earnest, to attempt to rein-in the independent power of the NOSB.

“That’s the genesis of Congress reversing itself, on sunset, and leaving synthetic and non-organic materials on the National List in perpetuity,” Kastel added. “We now live in the land of the midnight sun.”

There are now, in essence, “two organic labels”–one associated with industry-led corruption and the other based in decades-old practices by ethical family farmers. Cornucopia says the good news is that discerning consumers and wholesale buyers have the ability to choose.

For dairy products, eggs, soy food, and a number of other product categories, The Cornucopia Institute performs research and publishes scorecards rating the very best brands in terms of their authentic approach to organic production. The scorecards are available on the organization’s website.

“In every region of the country, and in every product category, consumers can find wonderful organic products that meet their high expectations,” Kastel said.

Cornucopia supports these provisions in the Farm Bill:

  • Provides $11.5 million in mandatory funding to the National Organic Certification Cost Share Program for each fiscal year from 2019 to 2023.
  • Reauthorizes the Organic Agriculture Research and Extension Initiative and provides mandatory funding of $40 million in fiscal years 2019 and 2020, $45 million for fiscal year 2021, and $50 million for fiscal year 22 and each fiscal year thereafter. This means that this research funding is extended beyond the life of the current Farm Bill and will help safeguard the organic marketplace into the future.
  • Reauthorizes the Organic Production and Market Data Initiatives through fiscal year 2023. This section requires that the USDA collect and distribute comprehensive reporting of prices relating to organically produced agricultural products; conduct surveys and analysis; publish reports relating to organic production, handling, distribution, retail, and trend studies (including consumer purchasing patterns); and develop surveys and report statistical analysis on organically produced agricultural products.
  • Authorizes funding for the NOP up through fiscal year 2023. The funding amounts are set to increase annually.
  • Amends section 2120(b) of OFPA to improve information sharing within governmental bodies. It requires that all parties to an active investigation (including certifying agents, state organic certification programs, and the National Organic Program) share confidential business information with federal government officers and employees involved in the investigation as necessary to fully investigate and enforce potential violations of this title. Cornucopia hopes that this will help investigations be more streamlined and effective.
  • Adopts funding limits for organic research: 20 million in each of fiscal years 2019 and 2020, $25 million for fiscal year 2021, $30 million for fiscal year 2022, and $50 million for fiscal year 2023 and each fiscal year thereafter. The congressional conference included $395 million in mandatory funding to support organic research.

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