Government Documents Article Assignment
June 2, 2010
Executive Summary of Overview Article
Easily found on the U.S. Department of Agriculture’s Agricultural Marketing Service website, this article provides a very brief, accessible overview of the Organic Food Production Act (or OFPA) of 1990, why the Act was enacted, how the Act led to the creation of both the National Organic Program (NOP) and the National Organic Standards Board (NOSB), where the NOP is housed, and who makes up the NOSB. While it does not detail either current or historical controversies, it does provide answers to basic questions for understanding those controversies, covering the regulatory standards established by the NOP. These include the following: production and handling standards - what are the guidelines for how organic crops are produced and organic livestock raised?; labeling standards - what requirements must be met to display the USDA Organic seal on products?; certification standards - how do applicants become certified and who must participate?; and finally, accreditation standards - how are organic certifying agents accredited? Mention is also made of alternatives to accreditation for foreign entities.
For a more in-depth overview of current issues in the organic industry as a whole that includes sidebars with similar information but goes into much, much greater detail, I would recommend reading:
Economic Research Service. Emerging Issues in the
Much of the information presented here will be covered later in my paper, but could potentially be useful to scan through ahead of time if a more comprehensive understanding of controversies is desired in addition to the basic information provided by the first document.
The National Organic Program (NOP)
Balancing Authenticity with Practicality: A Work in Progress
“Organic” is a term fraught with definitional quandaries. The surrounding controversy, contradictions, and confusion become no less when used in the context of agricultural practices and the governmental laws and regulations that apply to those practices. However, the passage of the Organic Foods Production Act (OFPA) of 1990 proposed a program and a board to standardize organic production practices nationally. As a result, the National Organic Program (NOP) was created in 1997, following guidelines developed over the seven interim years by the National Organic Standards Board (NOSB) and thereby providing regulatory national standards for organic food production.
A New York Times article discussing the inception of the NOP at that time noted that “Consumers commonly assume that the word “organic” describes a product – a spear of organic asparagus, for instance, or a peck organic Winesap apples.” In terms of NOP regulations, however, “organic” denotes a system of agriculture; food labeled “organic” indicates production under a set of federally standardized guidelines, and thus, one reliable, if complicated, definition for the consumer. Yet is is apparent that even in the beginning there were conflicting ideas of what a system of organic food production should entail, as many practice decisions concerning issues such as irradiation or genetic engineering were postponed due to public and organizational concerns. In fact, the final rules were not published until December 21, 2000. 
A Brief Legislative History
Two legislative reports that accompanied the passage of the Organic Foods Production Act of 1990 through Congress, Senate Report No. 101-357 and House Conference Report No. 101-916, help give some history and rationale behind the Act. Together they identified the various reasons for enacting organic foods legislation and some basic history preceding it. They also outlined a significant portion of what was to be included in the Act.
The first reason for the Act cited by the Senate Report was the increasing size of the market for alternative food. Harris polls taken in the late eighties consistently produced results indicating that eighty-four percent of Americans wanted the ability to purchase organically grown produce, with half of them even willing to pay more for them. Yet the report noted that a lack of consistent production standards had hampered trade in this market. At that time, there were twenty-two states regulating organic food, but none of these laws were alike, causing confusion for consumers, interstate commerce difficulties, and non-standardized labeling. The word “organic” had no standard legal definition, and some evidence pointed to the possibility that some conventionally grown food was purposefully being mislabeled “organic” to make extra profits. Another issue was the inability of American agribusinesses to participate in foreign markets that did possess national organic standards.
In response to these issues, the report noted that several organizations and associations, such as the National Association of State Departments of Agriculture, had passed resolutions and otherwise communicated their desire for the Federal government to establish national organic standards and regulations. Another response had been the introduction of several legislative initiatives, including three bills in 1989, the first with organic food provisions, and the other two defining organic production: Senator Leahy’s Organic Foods Act, Senator Fowler’s The Farm Conservation and Water Protection Act, and Senator Lugar’s Conservation and Enhancement and Improvement Act. Finally in early February of 1990, Senator Leahy introduced Senate bill 2108, an updated version of his earlier bill that incorporated many of the recommendations of the previously mentioned organizations (most notably the partnering of private and public entities in setting standards). The hearing on S. 2108 – titled “The Organic Foods Production Act of 1990” – was held on March 22, 1990 by the Subcommittee on Research and General Legislation.
The rest of the report describes the contents of S. 2108, including the definitions of organically produced food , how the standards for organic food production are to be implemented, how certifying agents will be established, how state organic certification programs may be created alongside the national ones, how the Secretary will be required to appoint a National Organic Standards Board, what the National List is, and what the standards will be for residue testing, processed food, and livestock. Exemptions for famers too small to afford strict regulation compliance, exemptions for emergency pest/disease treatment, enforcement responsibilites, program promotion, transition labels, and financial support for related research are also outlined.
The subsequent House Conference Report 101-916 simply provides a summary outline of the findings of S. 2108, and then describes the amendments to be made by the House, and any additional changes or deletions found in the substitute bill created by the House Conference – the version of the bill that was ultimately passed into session law. For example, the House amendment added two more positions to the Senate’s recommendation for the 13-member National Organic Standards Board that the Act would eventually create: a certifying agent and a scientist – bringing the total number of board members to 15. Several such changes as well as deletions of entire segments are detailed in this report.
The OFPA and the NOP
The Organic Foods Production Act of 1990 is the “short title” for Title XXI—Organic Certification of the Food and Agriculture Act of 1990, or Public Law 101-624. The Act is codified as Title 7, chapters 6501 through 6522 in the United States Code; for the purposes of discussing the Act, we will use the code chapter citations. The purposes of the Act as outlined in chapter 6501 are:
(1) to establish national standards governing the marketing of certain agricultural products as organically produced products;
(2) to assure consumers that organically produced products meet a consistent standard; and
(3) to facilitate interstate commerce in fresh and processed food that is organically produced.
Chapter 6502 then defines important terminology used throughout the ensuing legislation, such as “certifying agent,” “handler,” “organically produced,” and “synthetic.” Chapter 6503 requires that the Secretary of Agriculture establish a national organic certification program, including the possibility of permitting each individual state to establish and govern their own programs according to the national standards. In Chapter 6504, an overview of the national standards for agricultural products to be sold or labeled as organically produced are outlined as follows, requiring that such a product shall:
(1) have been produced and handled without the use of synthetic chemicals, except as otherwise provided in this title;
(2) except as otherwise provided in this title and excluding livestock, not be produced on land to which any prohibited substances, including synthetic chemicals, have been applied during the 3 years immediately preceding the harvest of the agricultural products.
(3) be produced and handled in compliance with an organic plan agreed to by the producer and handler of such product and the certifying agent.
Chapters 6505 and 6506 outline compliance and general requirements, addressing such issues as display of the USDA Organic seal and imported products, as well as calling for the establishment of a national program – what would later become the NOP. Chapter 6507 gives instructions for establishing state organic certification programs. Subsequent chapters deal with prohibited practices and materials, animal practices and materials, handling operations, and additional guidelines.
A particularly important chapter, 6513, details the required sections of the organic plan. The organic plan is what must be submitted by an organic producer or handler for approval and certification. This certification is granted by what is called in the Act a government accredited “certifying agent,” and what such an agent must do to become accredited is covered in chapter 6515; the establishment of such a government accreditation program is called for in chapter 6514.
Chapter 6517 establishes the National List, a list of approved and prohibited substances – a later focus of great challenges to the integrity of the government’s organic standards. Chapter 6518 is another key portion of the legislation, establishing the National Organic Standards Board, “to assist in the development of standards for substances to be used in organic production and to advise the Secretary on any other aspects of the implementation of this title.” Responsibilities of the Board are enumerated here, including development of the National List, creation of technical advisory boards, and many other advisory and evaluative functions. The final chapters of the Act, 6519 through 6522, cover violation penalties, appeals procedures, a timeline for the Secretary to propose administrative rules carrying out the legislation, and appropriations authorization.
The administrative rules carrying out the specific requirements of the OFPA legislation are published in the Code of Federal Regulations as the National Organic Program, which falls under the United States Department of Agicultural agency (USDA). As noted earlier, the NOP was begun in 1997, but the final rule was not published until December 21, 2000, and the rules were not implemented until October 21, 2002. The rules do not apply to those farmers selling less than $5000 a year in organic products. Today, the NOP is comprised of three branches: the Standards Development and Review Branch, in charge of rulemaking; the Accreditation, Auditing, and Training Branch, which accredits certifying agents; and the Compliance and Enforcement Branch, ensuring regulatory compliance for the Program. 
Early Impact of Legislation and Regulation
The USDA Economic Research Service (ERS) published a report in June of 2001 describing the substantial expansion of both certified organic farming systems and accompanying consumer demand for organically produced food. According to the report, in 1997 there were forty organic certification organizations and 1.35 million acres of cropland and pasture employing certified organic farming systems in 49 states. This represented a doubling of certified organic cropland between 1992 and 1997, and both organic eggs and dairy systems grew even faster. The report noted that while organic standards may have been implemented primarily to provide consumers with a reliable standard and definition of organic and to support interstate and international commerce, many other benefits were to be gained by the adoption of organic farming systems: improved soil, energy conservation, reduced pesticide use, etc. However, there were some substantial obstacles to certification. These included large managerial costs and inability to price products as organic during the 3-year conversion period required. Also, because the organic industry differed from conventional agiculture in terms of types and diversity of crops grown, the majority of organic farms in the 1990s remained small scale and unable to afford the certification process. In response, the USDA started to develop financial programs and research to assist smaller scale producers and encourage conversion by larger farms. Regardless, the organic agriculture sector remained a fast-growing segment of the agricultural market during the 1990s.
continued as the industry moved into the new millenium and the NOP’s rules were
finally implemented in December of 2002. Fifty state and private accredited
organic certification programs and over 40 foreign programs were accredited to
article published in the February 2003 edition of Amber Waves (a USDA journal/magazine) notes that consumer demand
for organic products had risen 20 percent or more annually throughout the 1990s
and continued this pace into the 2000s. Also, “for the first time, more organic
food was purchased in conventional supermarkets than in any other venue,” along
with an increase in farmer’s markets and other direct-market venues. Finally,
the article speculates that the issuance of the “USDA Organic” label in 2002
would increase consumer awareness of organic products and thus create further
USDA presentation cited statistics showing the top three reasons consumers
supported the organic food market in 2002: preferring fewer chemicals in food;
products being generally “better” for the respondents and their families; and
products being “better” for the environment. Other
research showed that larger prices could be gotten for organic products; even
without these “price premiums,” however, organic producation was found to be
potentially more profitable than conventional production due to higher yields,
lower input costs, etc. Again, such findings were expected to create greater
interest in conversion to organic farming systems by producers. By
2005, every state in the
Recent and Emerging Developments
recent years the focus has begun to shift from just organic system
standardization and market support to encouraging farm transition because of
its beneficial impact on environmental quality.
Much of this has occurred through financial initiatives. The 2008 Farm
Act added a new provision – the Organic Transition Support – to the NOP. This
makes farms practicing conservation and/or transitioning to organic farming
procedures eligible for financial incentives. Also, Congress has continuously
increased funding for organic farming research to address various issues,
notably increased yields and profits as well as obstacles to adoption of
organic farming systems by farmers.
For instance, the Food, Conservation, and Energy Act of 2008 included a
five-fold increase in mandatory organic program funding. Two organic
certification cost-share programs have also been developed, one for producers
under the Federal Crop Insurance Act, the other for all
not all has gone so smoothly for the NOP. A major controversy that surfaced in
the mid-2000s centered around the National List and its alleged potential to
undermine the integrity of the NOP. An organic blueberry farmer from
This and other events have created questions about the strength and integrity of the USDA organic label. The Washington Post article notes that since 2002, there have been 65 instances of standards recommendations by the NOSB that have not been acted upon. Many, however, feel that the rules are already too stringent, including NOSB member Joe Smillie:
“People are really hung up on regulations…Hello? We live in a polluted world. It isn’t pure. We are doing the best that we can.”
Other reasons for controversial decisions made the NOSB include not wanting to inhibit market growth by excluding potential members of the organic community, the need to act quickly due to issues of urgency such as food safety, and the need to prioritize issues based on too small a staff.
audit conducted in March of this year by the Office of the Inspector General of
the National Organic Program issued 14 recommendations to NOP officials. The
audit concluded that the Agricultural Marketing Service of the USDA needs to
strengthen management controls of the NOP, giving as an example the lack of
procedures reviewing and implementing NOSB recommendations concerning the
National List. The audit also stated the need to develop and implement
protocols for evaluating and resolving complaints and guidelines as well as
creating procedures to provide guidance to certifying agents in case of
These recommendations make sense based on the controversies covered in this
paper. Clearly the NOP is still evolving and responding to the needs of the
various entities involved: producers, consumers, officials, etc. In the
meantime, new issues continue to emerge. In a June 2009 report by the Economic
Research Service, the prevailing current issue is the “organic supply squeeze.”
Consumer demand – egged on by successes of the NOP – has far outstripped the
organic industry’s ability to supply product. The Organic Trade Association’s
research indicates that 28 percent of
NOSB chairman provides a succinct characterization of the current state of the American organic industry:
“As the organic industry matures, it is becoming increasing more difficult to find a balance between the integrity of the word ‘organic’ and the desire for the industry to grow.”
Fortunately, the NOP still has the potential to fulfill the latest policy ideal concluding the 2009 ERS report:
investment in organic agriculture facilitates wider access to organic good for consumers and helps farmers
capture high-value markets and boost farm income,
as well as conserve nonrenewable natural resources and protect
1. Economic Research Service. Emerging Issues in the
This report was published by the Economic Research Service to examine one overall issue in particular; the outpacing of supply by public demand for organically produced food. It does this by covering recent research into organic farming production adoption, production costs and returns, and market conditions. It also discusses provisions in the 2008 Farm Act to provide monetary resources to farmers that encourage conversion to organic farming as one way of meeting the increased demand.
The report is well-organized and thorough while still
accessible to any layperson, though some of the statistical research may be a
bit complicated to digest. Sidebars give ample and clear background on the
relevant legislative and administrative activities, namely the Organic Foods Production
Act of 1990 and the subsequent establishment of the National Organic Program
and regulations and standards set forth therein. I found it to be a particularly
useful document in understanding both the history and the current state of the
organic industry in the
This is the original district level case brought against the USDA Secretary in 2006 by Arthur Harvey in an attempt to make the USDA enforce prohibitions for the use of synthetic substances in organic food production. (There is also the appeal cited in the Federal Reporter 3d, which affirmed this decision.) Because the details of this case are discussed in the paper, I won’t go too much into the case here, but I will say that the opinions are a little difficult to read. As often happens in judicial issues, what the case was actually about for the petitioner - something substantial gets a bit lost in what the case must technically be about, which in this case was more procedural. This makes teasing out the implications of the case decisions difficult without reading the secondary sources that give more background on the situation leading up to the case and the potential fallout from the case.
3. “National Organic Program.” Code of Federal Regulations Title 7, Pt. 205, 2010 ed.
This section of the Code of Federal Regulations sets out the specific agency (the National Organic Program), standards, rules/regulations, etc. called for by the OFPA of 1990 legislation. As an tool of implementation, it is very useful for its purpose, but like most regulatory documents, packed with a lot of very detailed, specific information - as it should be. However, secondary sources were in general probably more useful for me to get an overview of the guidelines set forth by the CFR rather than reading the entire document directly and trying to distill the essential parts necessary to understand for the purposes of my paper.
4. “Organic Certification.” United States Code Annotated Title 7, Section 6501, p.258, 2010 ed.
This is the
actual legislation of the Organic Food Production Act of 1990 in the context of
the current United States Code. . The legislative language is straightforward
and well-defined. While this is the same text found in the session law, because
this text is in West’s annotated version, I found many useful references to
legislative histories, relevant articles, and the
This document, a House Conference Report I found along with the Senate report and the accompanying Presidential Signing Statement (in which the NOP is not mentioned at all) is the primary piece of legislative history leading up to the OFPA of 1990. In some ways, the document is not what I was hoping it would be, which was a more complete history of government activity leading to the enacted law. While there is a brief outline of the activity of some representatives to pass prior legislation, and the main reasons for passing the upcoming version, mostly, the report adds to the Senate report, which in turn is more of an outline of what the committee members intend for the upcoming bill to do. So in terms of understanding the history, it was not overly useful, but in terms of getting language ready for the writing of the OFPA of 1990, it was obviously very useful at the time.
 The New York Times. Reading the Organic Rules, editorial. ONLINE. 1997. Lexis-Nexis Academic. Available: http://www.lexisnexis.com.offcampus.lib.washington.edu/hottopics/lnacademic/ [30 May 2010].
 “Organic Foods Production Act of 1990.” (P.L.
 “Organic Certification.”
 Economic Research Service.
 “National Organic Program.” Code of Federal Regulations Title 7, Pt. 205, 2010 ed.
 Economic Research Service.
 Economic Research Service. Organic Agriculture: Gaining Ground. ONLINE. 2003. Amber Waves. Available: http://www.ers.usda.gov/AmberWaves/Feb03/Findings/OrganicAgriculture.htm [30 May 2010].
Economic Research Service.
 Economic Research Service. Organic Production and Costs. ONLINE. 2009. Available: http://www.ers.usda.gov/Briefing/Organic/FarmSector.htm [30 May 2010].
 Economic Research Service. Organic Agriculture: Organic Certification. ONLINE. 2009. Available: http://www.ers.usda.gov/Briefing/Organic/Certification.htm [30 May 2010].
 Economic Research Service. Organic Agriculture: Organic Policy. ONLINE. 2009. Available: http://www.ers.usda.gov/Briefing/Organic/Policy.htm [30 May 2010].
 Kindy, Kimberly and Lyndsay Layton. Purity of Federal “Organic” Label is
Questioned. ONLINE. 2009. The
 Kindy, Kimberly and Lyndsay Layton. Purity of Federal “Organic” Label is
Questioned. ONLINE. 2009. The
 Kindy, Kimberly and Lyndsay Layton. Purity of Federal “Organic” Label is
Questioned. ONLINE. 2009. The