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Date: Wed, 29 Apr 1998 09:31:57 -0500
From: Douglas Hinds <dmhinds@acnet.net>
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To: "organic-certification"@listserv.oit.unc.edu;,
"sanet-mg"@shasta.ces.ncsu.edu;
CC: "dmhinds@acnet.net;dhinds"@ucol.mx;,
"london"@sunsite.unc.edu;, "sals"@rain.org;,
"ddworley"@caribe.net;, "dan.worley"@mindless.com;,
"PetersFarm"@aol.com;, sfmoore@earthlink.net
Subject: Proposed Organic Rule
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Any constructive comments will be appreciated
Eileen S. Stommes, Deputy Administrator
USDA-AMS-TM-NOP,
Room 4007-So., Ag Stop 0275,
Washington, DC 20090-6456
Fax: 1 (202) 690-4632
Topics to which reference is made: Labeling, Certification,
Accreditation, Fees, Compliance, Regulatory Impact Assessment &
Regulatory Flexibility Analysis
Dear Ms. Stommes:
I will not attempt to deal here with those aspects of the Proposed Rule
that have already been amply treated by thousands of others, due to
their gross deviation from all that Organic Agriculture has come to
represent.
Instead, I will bring attention to a number of constitutional issues
that were first raised by a serious flaw rooted deep in OFPA itself and
which unfortunately (albeit logically), has been taken to an even
greater extreme in the context of Proposed Rule. The issues are
those of Freedom of Speech, the Right to Inform and be Informed and the
Right to a Gainful Livelihood; and the infringements that the Proposed
Rule places upon them are perhaps best be observed in Section 205.103
(Use of terms or statements that directly or indirectly imply that a
product is organically produced and handled, which itself is based
on Section 2106(a)(1)(B) of the OFPA (7 U.S.C. 505(a)(1)(B)), which
provides that “a person may affix or provide a label or other market
information about an agricultural product, including an ingredient, that
directly or indirectly implies that the product is organically produced
and handled only when the product has been produced and handled using
organic methods in accordance with the Act”; and Section 205.104
(Informational statements prohibited).
In the case of Section 205.103: Since OFPA restricts usage of the word
organic to those products that were certified by certifying agencies
duly accredited by the USDA under the terms of the Act, this means that
a word (“organic”) which has developed a significant degree of consumer
recognition and which therefore possesses a market value,
will be become privy only to those who have by reason of their higher
degree of economic solvency on the one hand, and/or lack of confidence
on the part of those who consume and/or distribute their products on the
other; both face the need and are in a position to comply with this
capricious, in many cases unnecessary and in countless others unjust
disposition.
Why so? Simply because the quality of being organic has not, will not
and will NEVER be dependent on USDA administrated organic
certification! The essence of truth in that statement springs from the
concept itself, and not from the ridiculous proposals contained in the
Proposed Rule, although the gross deviations the Proposed Rule
makes from that essence, simply proves my point. And frankly, it will
take much more than an Act of Congress (especially when that Act is
itself unconstitutional), to make that so. The word’s meaning has been
sufficiently well understood by those who care enough to grow or consume
(but not necessarily sell) organic foods, and while a legitimate USDA
supported (but not led) effort to define the finer points of the issue
would not be unwelcome, perhaps first the USDA should dedicate far more
funding toward the additional research needed for developing (or
documenting) noncontaminating, economical, energy efficient, biosphere
enhancing , alternative (to agrochemical) agricultural technology.
The meaning of any word stems from it’s use. As things now stand,
usage of the word “organic” enjoys a higher degree of both truthfulness
and consistency within the unregulated organic foods industry, than the
Proposed Rule will allow, if implemented. Furthermore, it is foolish to
believe that the process of certification as contemplated will
realistically eliminate the element of fraud from the organic market, or
that mandatory certification will be either beneficial or proper for
consumers, farmers or the marketplace.
This is an issue (and decision) whose resolution is best left within the
context of the Buyer / Seller relationship. (I see no inherent problem
with attempting to arrive at a MINIMUM - [more on that later] - legal
definition of the word organic as a measure to combat consumer
fraud, but this is a matter entirely separate from that of mandatory
certification. [Regarding the so called Small Farm Exemption, the
$5,000 threshold is so insulting to any thinking person’s intelligence,
it would be a joke if it weren’t so damaging to the legitimate interests
of real life small farmers. In any case, it is mandatory certification
itself that is in question, and therefore the SFE is a moot issue, as
are the Fees associated with USDA organic Certification. Only those
that want it or need it should pay them. USDA Organic Certification
must stand on it’s merit or it will never make it out of the
courtroom]).
Mandatory certification is a decidedly questionable issue and the
problems associated with it are enough to invalidate any possible good
that the prospect of arriving at a consistent minimal national standard
for organic foods can possibly offer. Additionally, both the dangers it
poses (and the damages it will undoubtedly cause), are compounded by
Sections 205.103 & 205.104; which as stated, are unconstitutional and
will be proven as such in court (as will the mandatory aspects of
certification of OFPA itself, if necessary).
Organic Farming stems from a coherent principle and employs a
consistent methodology, and that is precisely why it has not only
endured but continued to prosper, above and beyond any growth registered
in the conventional foods market (with the possible exception of Fresh
Cut Processing, which is itself subject to exploitation by the still
developing organic industry). Many elements of the Proposed Rule
(including the above mentioned Sections), and the mandatory aspects of
certification of OFPA itself, attack rather than fortify the possibility
of a continued, favorable evolution of organic principles and the
competitive state of the organic industry, in relation to less wholesome
foods whose production depends practices proven to be environmentally
detrimental.
In conclusion: The fact that numerous elements of the Proposed Rule
are blatantly antithetical to the established tradition of organic
agricultural practices, that it’s general drift strays even farther from
the philosophical basis underlying the concept itself and clearly, from
the original intentions of those who’s conviction, labor and integrity
contributed most toward creating the category (and even from OFPA itself
- although OFPA remains a seriously flawed document in it’s own right),
I feel obligated to respectfully submit that at this time, the only
prudent course of action that can be safely recommended is to modify
OFPA itself, to the effect that a new and separate category is created:
That of “USDA Certified Organic”, leaving the rest of the Organic
Industry as it stands, until such time as it has been convincingly
demonstrated that governmental involvement in the marketplace for
organic foods is both necessary and beneficial.
Until now, the only effect of governmental involvement that has been
demonstrated to date, is one of disruption and incongruence. Therefore
- this Rule - and the Act that gave rise to it, will NOT further the
causes of sustainable, ecologically sane agriculture; nor
will they increase the accessibility or availability of nutritious fresh
and processed food for U.S. consumers, and it will certainly not benefit
organic farmers. For that to occur, it will be necessary for those who
attempt to do so, to become much more knowledgeable regarding the
principals underlying organic foods, the rightful role of government in
the marketplace and above all, how to legislate an Act (and all that
stems from it) that truly meets those ends.
The Mandatory Certification imposed by OFPA as now written, must be
removed in order for any meaningful consensus to ever be achieved, in
terms of a national definition of organic food. Furthermore, given the
continuing evolvement of the concept (which in no ways indicates that
the slightest possibility exists of any genetically modified garbage
being inserted in our biologically evolved food organisms and calling it
organic), a healthy differentiation of emphasis and methods will
continue to be present, and those who choose to publicize those
differences will continue to do so, regardless of whether the Proposed
Rule is implemented or not! The reason being, their right to do so is
consecrated in the U.S. Constitution and fortified by the conviction and
courage of those who know the importance of their own values and rights,
and will do whatever is required to make that respected.
Lastly, I should comment on the supposed USDA justification for
mandatory certification as published on page 2 of the Proposed Rule,
under the title: Purpose and Background of the National Organic
Program. Frankly, this tract is simply filled with inaccuracies and
caters to same private interests that hope to benefit personally from
achieving their goal of foisting mandatory certification on all and
sundry participants in the organic movement, with little regard for the
lack of real need for it, the greatly increased costs for many farmers
and consumers this will create or the lowered competitive state the
measure will generate for organic foods as a whole, in relation to
conventionally marketed foods.
Thank you for your attention. Please feel free to call me should you
require any further elaboration on my part of this theme (time
considerations have prevented me from developing the argument at greater
length, but I have full confidence in your ability to grasp
my assertions).
Sincerely,
Douglas Hinds
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