Calf_3Source: USDA, Flickr

Demystifying the policy that impacts organics farmers and consumers

In the wake of massive destruction to the organic dairy marketplace, a languishing rule intended to prevent the continuous cycling of conventional livestock into organic operation will finally reappear as a second proposed rule for public comment.

Reporting from the fall National Organic Standards Board (NOSB) meeting, Dr. Jennifer Tucker, director of the National Organic Program (NOP), attributed the five years of limbo for the Origin of Livestock (OOL) Rule to complex legal questions that could jeopardize the agency’s position.

The Cornucopia Institute’s complete coverage of the NOSB meeting, a service it has provided to stakeholders since 2012, can be found on its website. The NOSB is an expert citizen panel created by Congress, charged with advising the Secretary of Agriculture on organic policy. This October, the biannual meeting took place online for the second time due to the pandemic.

The OOL draft rule’s forward momentum is imperative for the continued existence of authentic organic dairy farmers. But the pace is unconscionable.

Organic dairy production is a case study in the pernicious influence of industrial agriculture combined with a failure of the USDA to protect the integrity of the organic label. Over seven years have passed since the Office of Inspector General flagged the problem, noting that the transitioning of conventional dairy animals allows offending operations to save on feed costs, while increasing their dairy herd and organic milk market share—a practice that potentially leads to dairy producers “shopping for certifying agents who allow this process.”

This protracted, painful period of acting with impunity will necessitate another economic study, a fixture of the rulemaking process that measures marketplace impact. Those findings could likely present yet another hurdle to the rule.

“What will prevent the USDA from ultimately scuttling it, claiming the rule would cause too much harm to the markets?” says Cornucopia Director Melody Morrell.

The NOP had previously suggested the final rule would be available in the summer of 2020. Tucker detailed three specific legal concerns that will be addressed in the new rulemaking:

1) The operation, not the individual, will be the certified entity.

2) How to regulate the movement of transitioned livestock.

3) Any regulation must fall within the scope of the organic law—the NOP has repeatedly suggested the current proposed rule does not.

Look for more coverage from Cornucopia when the rule re-emerges for comment. If you can, support the ethical organic brands highlighted on our Organic Dairy Scorecard. They need our collective support to survive.

Other discussions of interest for organic farmers, consumers, and environmentalists included:


Cornucopia is pleased to announce that the NOSB voted down a controversial petition to add fenbendazole to the National List for use in organic laying hens. Fenbendazole is a powerful synthetic parasiticide that leaves residue in eggs.

Despite comments that the increasingly early, wet springs in the South have increased parasite pressure by up to 900%, NOSB member and organic inspector Nate Powell-Palm said that he spoke with no organic laying hen producers over the past season who needed fenbendazole. Powell-Palm also inquired with two large, national producers of organic eggs, who reported no consumers had ever complained of worms in their eggs.

The petition for fenbendazole was submitted by Merck Animal Health, which originally developed the product for use in conventional agriculture. It would have enabled factory-organic poultry producers to cycle birds over the same patch of parasite-infested ground and treat the whole flock with fenbendazole on an emergency basis (“emergency use” is currently undefined in the regulations). Authentic organic producers use cultural management and other production methods to sufficiently control parasites.

EPA List 4 Inerts

Pesticide formulations used in organic agriculture permit use of EPA List 4 Inerts of Minimal Concern. Use of the word “inerts” is something of a misnomer. These are chemically and biologically active ingredients used in formulations to improve application, delivery, and action of pesticides. Pesticide manufacturers do not have to disclose which inerts are used in their formulations, further complicating matters.

Under the guidelines for prohibitions or exemptions in the Organic Foods Production Act (OFPA), specific requirements determine when a substance can be added to the National List. A substance that would normally be prohibited under the organic label can be allowed if that substance is needed in production and contains synthetic inert ingredients that are not classified by the Environmental Protection Agency (EPA) as “inerts of toxicological concern.”

Although the substances on EPA List 4 were considered inerts without toxicological concern when the list was introduced in 1996, science has advanced since that time. The EPA quit maintaining this list in 2006. Since the List 4 is defunct in the eyes of the EPA this leaves a regulatory quandary: the organic regulations appear in conflict with OFPA.

Since EPA List 4 inerts were added to the National List without individual review, the NOP formed a working group with EPA and the NOSB in 2011 resulting in a 2015 NOSB recommendation to work with EPA’s Safer Choice Program to evaluate these materials.

Given that ten years have passed since this topic was introduced, some members of the NOSB sought an expedited pathway to rulemaking. Board Chair Steve Ela proposed the board could recommend to remove EPA List 4 inerts from the National List, suggesting NOP staff could work further with EPA to determine an appropriate way forward. Dr. Tucker clarified that if the board delists these chemicals and a suitable alternative is not available before this listing sunsets from the list in 2022, the program will relist it.

The NOSB received comments for this meeting that pesticides approved for use in organic are critical to production of some crops and asked for EPA List 4 inerts to remain on the National List. But other commenters noted the deep need for progress on this issue, asking the board to de-list.

The two scientists on the NOSB ultimately voted to de-list, noting that their votes would encourage the NOP to take action and EPA List 4 inerts will not be removed from the National List if no appropriate alternative is identified by the sunset date in 2022.

Several veteran members of the NOSB agreed that the issue will require the combined efforts of the EPA and USDA and expressed doubt that the advisory role of the NOSB is sufficient to resolve this long-standing and thorny issue. No public comments addressed what kind of system should replace this listing. Ela suggested that relisting would discourage action, arguing that the NOSB would likely need to sideline all other work to properly consider the complex science and industry of inerts.

Several board members expressed concern that organic farmers will feel unheard if the NOSB recommends de-listing and one suggested a break with traditional processes could appear undemocratic.

A three-fifths majority of the board voted to relist the problematic EPA List 4 inerts for another five years.

Cornucopia was frustrated by the inaction of the NOSB on this issue. Although it is true that farmers are struggling and politics are incendiary, the law and regulations of the organic program are intended to provide a logical structure for farmers and consumers. It is a disappointment that the board effectively kicked this can down the road again.

Cornucopia will follow this issue closely and advocate for a review of any inerts used in organic production as soon as possible.

Paper (Plant pots and other crop production aids) – petitioned

Paper pots are an important production aid for many small and mid-sized organic crop farmers because they allow quick and easy planting, allowing farmers to reduce labor costs. In 2018, the NOP notified certifiers that paper pots are not allowed in organic systems, but NOP would allow a phase-out period until the end of the 2018 crop season. The NOP first flagged the paper pots as problematic because they are currently made with “virgin” rather than recycled paper (newspapers or other recycled paper is allowed to be used as mulch). Due to outcry from the organic community about the need for paper pots and their appropriateness for organic production, the NOSB formally requested an extension for paper pot use. The NOP agreed to allow the use of paper pots in organic crops with no time restriction, in order to give the NOSB time to go through the review process of this material.

At this meeting, the NOSB went on to discuss their intervening work on the paper pot issue, including a review of current and upcoming paper pot technologies. The Technical Review showed that the adhesives and non-paper, synthetic fibers found in a variety of paper pots are also found in newspaper and recycled paper that are allowed for compost feedstock and mulch.

The NOSB sent the issue back to the Crops Subcommittee for further review. The board expressed hope that manufacturers will soon offer 100% bio-based paper pots or versions made from hemp or manure.

Marine Macroalgae in Crop Fertility Inputs

The proposal on marine macroalgae was a particularly contentious one at this meeting. The NOSB developed this proposal due to serious concerns that the harvest of marine macroalgae (seaweeds) for popular organic fertilizers may cause harm to seaweed beds, marine life, and the surrounding environment. To address those concerns, the NOSB presented a proposal which recommended adding “harvest parameters” to §205.601 (synthetic substances allowed for use in organic crop production) which would prohibit harvest areas and specific harvest methods for aquatic plant extracts and prohibit marine macroalgae from being used except when harvested following specific parameters (adding language to §205.602).

The suggested parameters on harvesting address conservation areas, bottom trawling, protecting reproduction of the population and ecosystem functions, biomass and architecture, and bycatch.

The NOSB received several comments from the fertilizer industry in opposition to the proposed language. Comments from scientists largely agreed the language was an appropriate compromise that would help protect wild ocean ecosystems. Some members of the NOSB called for the proposal to be sent back to subcommittee for more work; others argued that extensive work had already been done and that it was time to pass the recommendation onto the NOP. After heated debate, the NOSB voted to approve the proposal, including the suggested changes to the regulation.

The NOP is now tasked with creatinge a scientific task force to address the issues surrounding marine macroalgae, provide recommendations for guidance, and provide suggestions for clarifying annotation language. Once the proposal goes through the rulemaking process, cementing the protection in the regulations, it would have 5-year phase-in.

Kelp (2022 Sunset)

Non-organic kelp (for use in organic handling as a thickener and dietary supplement) was up for its 2022 Sunset Review. Board members noted the word “kelp” is broad and does not clarify which species are being used in production. Due to this uncertainty, it is difficult to say whether certified organic kelp is available in quantities sufficient to meet industry need. The NOSB further discussed environmental concerns. Kelp species are under significant stress, due in part to disruptions from climate change and changes in overall ecology.

After discussion, the Board voted to de-list non-organic kelp from the National List at 205.606.

Wild, Native Fish for Fertilizer Production

The purpose of the proposal was to limit the impact of harvesting wild, native fish for fertilizer and to ensure that liquid fish fertilizer products used in organic production are not harmful to the environment.

In discussion, some members of the board were concerned about disparate comments from stakeholders. Despite a Technical Review stating that fish were rarely harvested solely for fertilizer, other evidence contradicts this. Many stakeholders commented to the NOSB about the potentially harmful economic impact if their use of liquid fish fertilizer was restricted in any way, making some members of the board wary to act too soon with a recommendation.

The board voted to amend Section 205.601(j)(8) to include the language that liquid fish products must be “sourced only from fish waste, bycatch, or invasive species.”

The Board also passed a recommendation to add the definitions for “fish waste” and “bycatch” to Section 205.2.

Colors (2022 Sunset)

The NOSB had 18 colors up for their 2022 Sunset Review. In 2015, the NOSB supported relisting all colors, noting that certified organic colors were becoming available on the market and recommending future review not renew all colors on §205.606.

Based on input from NOSB member Jerry D’Amore (Handler), who investigated the need for each individual non-organic color, the board decided to vote on whether each color should be removed from the National List individually. The analysis was primarily based in how much organic supply exists on the market (with the hope that all plant-based colorants could eventually be supplied by organic versions).

The board recommended that the following colors be re-listed: beet juice extract color, beta carotene extract color, black/purple carrot juice color, elderberry juice color, grape skin extract, purple potato juice color, red cabbage extract color, red radish extract color, and saffron extract color.

Due to no longer being needed on the National list, the Board also recommended de-listing the following colors: Black currant juice color, blueberry juice color, carrot juice color, cherry juice color, grape juice color, paprika color, pumpkin juice color, and turmeric extract color.

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