Loyola University Chicago School of Law, JD 2021
According to the United States Department of Agriculture (USDA) the organic food market is experiencing double-digit growth in recent years. Despite the list of reasons that bump up the cost of organic foods, consumers are increasingly willing to pay a premium. Unfortunately for consumers, the weak, unclear, and sometimes non-existent labeling regulations imposed on organic products means that they may not be getting what they think they are paying for.
Current organic food labeling regulations
The rules for organic product labeling in the United States comes from three sources: the Organic Food Production Act (the OFPA), the USDA organic regulations, and the National Organic Program Handbook. In 1990, the OFPA authorized the USDA National Organic Program (the Program) to set national standards for the production, handling, and processing of organic agricultural products. According to the USDA organic regulations, organic agricultural production, “[integrates] cultural, biological, and mechanical practices that foster cycling of resources, promote ecological balance, and conserve biodiversity.” Application of this definition covers obvious practices like avoiding synthetic fertilizers and genetic engineering, but it also applies to the conservation of land and wildlife.
In order to use the USDA Organic Seal, a product must meet requirements that must be verified by an accredited USDA certifying agent. Products with the Organic Seal: are be between 100% and 95% certified organic ingredients, not be genetically modified, comply with the National List of Allowed and Prohibited Substances, and are certified. Products made with organic ingredients that do not meet the minimum standards may still use the term “Made with Organic” on its principal display panel, and identify the organic ingredients on the information panel.
In order for imported organic products to be sold in the United States, they must be certified by either the USDA regulations or an authorized international standard. The National Organic Program along with other offices establishes international trade agreements with particular countries or regions for the trade of organic products. Currently the United Stats has importing agreements with Canada, the European Union, India, Israel, Japan, New Zealand, South Korea, Switzerland, and Mexico.
Organic certification and labeling may appear simple and effective, but it is not without its issues. Currently, there are 80 USDA-accredited certifying agents worldwide. In a September 2017 audit of the National Organic Program, it was found that Agricultural Marketing Service (the program responsible for administering and enforcing the regulatory framework) was not fully transparent regarding their organic standards equivalency determinations. Looking at the present equivalency arrangements side-by-side, the Office of Inspector General (OIG) identified procedural and technical differences among all of them.
In the audit, the OIG stated that though the standards do not need to be identical across the board, the discrepancies in the existing agreements lacked the transparency needed to allowed interest parties and the public to understand the basis for the equivalence determinations. Other issues highlighted were a lack of import document verification at United States ports of entry, and millions of pounds of produce that had been sprayed with pesticides before entering the United States. These problems have not gone unnoticed with non-profit organization, The Cornucopia Institute filing several lawsuits addressing the concerns.
The USDA states that enforcement comes from both the organic certifiers and the Agricultural Marketing service. The certifiers promote enforcement by conducting inspections, analyzing samples, investigating alleged violations, issuing noncompliance notices, and suspending or revoking organic certifications. The Agricultural Marketing Service’s contributions consists of overseeing certifiers, conducting audits, investigating complaints, issuing Notices of Warning and Cease and Desist Orders, and levies fines up to $17,952 per violation when evidence shows a business has violated the regulations or misrepresented products.
Like with the regulations themselves, the USDA’s enforcement plan sounds nice in theory, but it has clearly not been as effective as it should be. This weak enforcement often goes unnoticed by the average consumer who often shelling out more than twice the price for certain goods under the impression that it is worth it. In a 2014 op-ed, former U.S. Secretary of Agriculture, Jon Block stated, “USDA’s research shows that more than 70 percent of consumers are likely to believe a food is safer, more nutritious or of higher quality if it bears the organic label. In fact, all the label signifies is that a given food has been grown, handled and processed without many of the modern techniques of conventional agriculture.”
Until firmer regulations and enforcement measures are enacted, consumers should do their best to be conscious of their purchases. Products may claim to be organic or have organic ingredients, but even then, there is still no guarantee that the product is any safer than your run of the mill produce. Consumers should be conscious of good farming practices, research food product brands supply chains, and read labels carefully before spending more on organic.