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Pundit’s Mailbag — Big Question For Organic Certification: Will USDA Step In To Clarify Certifier’s Responsibilities?

David Sasuga kicked off our coverage of the issue of the use of non-organic fertilizer on land certified as organic. The series that grew out of his initial note is substantial:

‘Spiked’ Organic Fertilizer Raises Consumer Doubts About Organic Definition

Pundit’s Mailbag — Organic Industry’s ‘Situational’ Standard

Pundit’s Mailbag — As ‘Spiked’ Organic Fertilizer Investigation Widen, Potential Grows For Weaker Consumer Confidence In All Fresh Produce

Pundit’s Mailbag — CCOF Speaks Out On ‘Spiked’ Organic Fertilizer

Pundit’s Mailbag — Legality of CCOF’s ‘Spiked’ Fertilizer Actions Questioned

Now David rejoins the conversation with a letter written in response to the rationale presented by Jane Baker, Director of Sales and Marketing for California Certified Organic Farmers (CCOF):

Thank you for continuing to cover this important story. I would like to comment on the recent letter from Jane Baker of California Certified Organic Farmers (CCOF).

CCOF has recently met with USDA National Organic Program (NOP) officials (Feb 11) and also testified before California’s Senate Food and Ag Committee (Feb 3) to encourage the new legislation for increased enforcement and fines in the production and sale of organic fertilizer.

CCOF previously assumed no organic fertilizer manufacturer would bend the rules by using synthetic to boost their formulas. They now take the position that all organic fertilizer manufacturers must be verified and tested.

On January 30th, CCOF announced its fertilizer sampling initiative. It consists of their 2009 Liquid Fertilizer Approval Policy. In it, CCOF’s stated goal: to ensure the highest level of verification and implementation of the National Organic Program.Toward this goal the policy has several requirements, including:

  • By August 15, 2009, manufacturers of liquid fertilizers selected by CCOF MUST undergo third-party on-site inspections.
  • Manufacturers of liquid fertilizers must provide documentation verifying no synthetic nitrogen equipment, tanks, or supplies are within 100 yards of a facility producing organic fertilizer at any time of the year.

As stated in the Pundit’s response to Ms. Baker, “We doubt that the liquid-fertilizer producers are uniquely malicious, so we suspect there are many other input problems all across the country.”

How does CCOFensure the highest level of verification and implementation of the NOP (its stated goal) with only one organic input being checked? Why is there no third-party verification policy to safeguard any other organic inputs? What about the seed, pesticides, fungicides and other things used by organic growers? Will the CCOF be shocked to learn that a seed supplier might sell a bag of conventional seed as organic?

What about third-party verification at the grower level? Shouldn’t there be verification to show no non-organic or synthetic inputs etc., are kept and stored within 100 yards of an organic farm at any time of the year? Will the CCOF be shocked to learn that an organic farmer has used a bag of conventional seed or other input in violation of NOP rules, when no one is watching? What is its justification for not requiring this kind of verification now?

Would they also have a reason for not supporting verification of a 100-yard buffer between organic and conventional production fields? How about a 100-yard buffer between organic and conventional processing, packing and storage of harvested produce? If this is important for fertilizer manufacturers, shouldn’t it be important for growers?

While CCOF’s Fertilizer Sampling Initiative seeks to do testing of a variety of liquid fertilizers on the market, why doesn’t CCOF launch a pesticide residue sampling initiative to test a variety of organic produce in the marketplace? What could be more reassuring to consumers than that? Most consumers would be shocked to learn that current organic certification relies on reviews of paperwork.

The CCOF has a prestigious and probably well deserved reputation among the organic community. No doubt the board and staff members have worked tirelessly to promote their beliefs. At the same time, this preeminent accredited certifying organic agency has decided not to vigorously uphold the principles that they claim to hold dear. They are not alone in taking this position. The Organic Trade Association is also more interested in tougher rules for fertilizer manufacturers while showing no interest in making sure that the existing NOP regulations regarding contamination of farmlands are followed.

It seems we may expect new laws for increased fines and enforcement for one segment of organic agriculture (fertilizer manufacturers), while the folks that are entrusted to carry out the existing regulations regarding prohibited substances choose not to enforce them.

Ms. Baker talks about the organic way. Is the organic way to betray the trust of the overall community of organic consumers by looking the other way when it comes to complying with the NOP rules?

This brings up the question of the accreditation of CCOF. Under USDA rules, as an accredited certifying agent, CCOF must “Demonstrate its ability to comply with a State’s organic program to certify organic production or handling operations within the State.”

Under the National Organic Program, accredited certifying agents are required to comply with and carry out the requirements of the Act and its regulations. If they fail to do so, they are responsible for their actions or failures to act.

As stated in the NOP Section: § 205.202 Land requirements:

Any field or farm parcel from which harvested crops are intended to be sold, labeled, or represented as “organic,” must:

(a) Have been managed in accordance with the provisions of §205.203 through 205.206;

(b) Have had no prohibited substances, as listed in §205.105, applied to it for a period of 3 years immediately preceding harvest of the crop

The rules are clear and unambiguous. As such, CCOF is failing to comply with its obligations as an accredited certifying agent.

Ms. Baker mentions me in her letter. We clearly disagree on what is the “right thing” in responding to the fact that synthetic fertilizer has been applied to certified organic land.

Ms. Baker states in her letter, “A reduction in the land in organic production would have led to a decreased supply and increased prices, neither of which is in the consumer interest. We believe that if you ask the organic consumer if they would want organic farmers, who had been the victims of fraud, to be put out of business, many would answer no.”

Is CCOF interested in quality or quantity? It is doubtful that organic consumers would prefer lowering the organic standards in favor of having more volume produced. Ms. Baker also seems to be saying organic farmers would go out of business if they are required to follow the NOP rules. Does that mean these rules are not sustainable for an ongoing business to follow? Actually, a large number of growers would agree that many aspects of organic farming may not be truly sustainable.

Her question for consumers regarding this issue illustrates a lack of understanding of organic consumers and a failure to take responsibility as a certifying agency. A more appropriate question to ask the organic consumer:

Would you still buy organic fruits and vegetables if you found out they are being grown on land that is contaminated with synthetic fertilizer? The resounding answer would be no.

Interestingly, the CCOF considers the organic farmers to be victims of fraud despite the fact that they used the spiked fertilizer to increase their production yields. What about organic consumers who are continuing to be defrauded by CCOF’s decision not to follow the rules?

There is no problem with working toward better checks and balances for organic input suppliers. But when this is done while ignoring a responsibility to carry out NOP rules, it looks like some kind of political gamesmanship.

CCOF’s swift and decisive action to deflect attention away from the contaminated land issue by blaming the USDA and fertilizer suppliers while ignoring a fiduciary duty to enforce organic rules seems a disingenuous attempt to protect its own interests rather than those of consumers.

The organic way should be about honesty. That is the best way to support the noble ideals of the organic movement.

— David Sasuga
Fresh Origins
San Marcos, California

David makes many reasonable points about the certification of inputs and the possible need for buffer zones to maintain organic integrity.

Increasingly, though, it is becoming obvious that this issue will hinge on what USDA does. The law as written seems pretty straightforward: CCOF or any organic certifier has NO DISCRETION. If it finds that prohibited substances have been applied to the land within three years, it cannot be classified as organic. There are no exceptions, no exclusions, intent is not relevant, mens rea isn’t mentioned.

So the question really is if USDA will enforce the law or not. Our guess is that it will not.

The problem is that CCOF has only one weapon to deal with these transgressions and that is an atomic bomb. The reclassification of land as transitional seems to be required as a matter of law; it is the correct path as a matter of consumer protection, but the USDA is a funny organization. Although charged with enforcing these rules, it is also obligated to promote agriculture — including organic agriculture.

To require the reclassification of thousands of acres as transitional would be a blow costing hundreds of millions of dollars. In the absence of widespread consumer outrage or a court order, it seems unlikely that USDA will look to impose that cost on organic growers.

Will consumers come to express outrage? Could a consumer gain standing in court to compel the USDA to enforce the law? Could a consumer sue individual organic vendors for fraud? We may find out.

In the background of all this is another issue, which is whether the organic growers who used the fertilizer were truly victims.

Yes, clearly, they ordered organic fertilizers but surely some of them must have been cognizant of unusually robust growth caused by the “spiked” fertilizer. Was every single grower duped? Or did, at least some choose to turn a blind eye, knowing that the organic audit would look at the paper trail and the farmer would not be doing any product testing.

Many thanks to David Sasuga for assisting us in analyzing this most complex issue.

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