Hi Larry,
Tuesday, November 09, 1999, 12:16:55 AM, you wrote:
LFLJ> I thought this new effort by government to become involved in the
LFLJ> organic foods industry was to set NATIONAL standards to benefit
LFLJ> the entire country and the entire world.
According to OFPA, State Governments (and only State Governments -
which are "colleagues" and have specific constitutional powers) can
take minimum standards beyond those OFPA itself sets.
This is one of the major problems many certifying organizations who
take pride in their own standards have with OFPA, which sets limits on
how "organic" something can be. Under OFPA only definitions for "USDA
Organic" and "State Government Organic" (which must be more stringent,
not less), can exist. Anything else is simply not organic, and the
issue of whether non governmental certifying bodies can even so much
as to refer to their own stricter standards in a way remotely related
to the word organic, has not yet been resolved, I believe. (This is
one of the issues that has prevented OFPA from taking effect, and
forms part of the Organic Rule, soon to undergo (or is already
undergoing) another round of discussion).
However - the principle problem with OFPA is that the possibility of
*not* certifying an organic product is not provided for, if that
product is going to be called organic. The small farm exemption may
provide some remedy (I'll have to reread OFPA here) but as Sal has
emphasized, the $5000 limit is simply unrealistic (unless the organic
farmers expect to benefit from this exemption are actually backyard
home gardeners, not people with small yet full time organic farms who
sell to primarily local markets, in which a bond of trust exists
between grower and consumer).
Unfortunately, the whole approach smacks of industrialized agriculture
(and OFPA could be viewed in that context, as the industrialization of
organic agriculture and markets), with the resulting lack of
diversity, a usurpation of the bond between grower and consumer (or
buyer), the exaltation of regimentation and the homogenization of
standards (with the resulting mediocrity that brings). But then, this
has sadly become a dominant trend in America during the 20th century.
Standards aren't bad, but incongruent and poorly implemented ones
are, and they benefit no one. They just squeeze the life out of what
used to be there, which finds another home anyway.
However - I *don't* intend doesn't imply that the meaning (and level
of consumer recognition) now inherent in the word organic - a meaning
that *wasn't* always present, but rather was created through the
collective effort of thousands of farmers, gardeners and consumers
that are *not* well served by obligatory USDA or *any* third party
certification (not unless called for by the buyers / consumers
themselves), should be "given up" without a fight.
As previously stated, other issues (i.e., the degeneration of organic
standards in general through the inclusion of substances and practices
clearly *not* consistent with the organic spirit and tradition),
have distracted from the true basic issue:
OFPA, which mandates compulsory certification, lends itself to
potential abuses and infringes on a number of constitutional
rights,including the freedom of speech (no falsehood exists when a
word has met the definition traditionally associated with it, nor has
an intent to defraud a occurred, and the concept of establishing new
meanings by decree, particularly when those meanings radically depart
from established tradition, simply lacks a firm legal precedent). The
right to earn a gainful livelihood is also infringed on by OFPA's
mandating compulsory certification, failing to contemplate a number of
legitimate scenarios under which certifying an organically grown
product is inappropriate and causes unnecessarily elevated expenses.
OFPA's mandating compulsory certification also widens the existing gap
between organic and conventionally grown products in terms of market
competitiveness, presupposes a guilt on the part of organic farmers
that conventional farmers are not subjected to, and economically
penalizes ecologically sane farming practices while contaminating ones
are being subsidized by the same agency responsible for overseeing
OFPA.
Having farmed organically since 1968 (San Marcos, CA - I believe I met
fellow sanet contributor Bargyla at that time) and recognized what I
still believe to be fatal flaws in OFPA as now written since the early
nineties (not long after it was published - although I unfortunately
did *not* participate in the process culminating in the creation of
it); and having since then dedicated considerable time and effort to
realizing a thorough examination of the act, arriving at an accurate
evaluation of it's strengths and weaknesses (both alone and together
with other interested and competent parties well versed in the
intricacies of the issues involved), the only sensible solution I and
many others find available is:
Once a wide consensus has been reached within the organic community
regarding those materials and practices that are or aren't "organic"
and the exceptions (if any) to same, OFPA must be modified to the
effect that certification *not* be compulsory.
This would address the dangers that a less than authentic legal
definition of organic now poses to the organic food industry as we now
know it, as well as the abuses to small farmers whose clients already
know and trust their products, both of whom then won't have to incur the
additional and unnecessary expense involved.
Since the issue by nature lies within the context of the buyer /
seller relationship and can be best be viewed from that perspective,
why don't we let USDA Certified Organic stand and compete on it's own
merit, as an option to be taken advantage of when appropriate, given
the degree of credence that the law's implementation demonstrates (and
this is something that can *not* be presumed. Nor need it be).
Once a consistent, minimum national standard for organic foods has
been defined and a consensus reached within the organic community
regarding that definition, and the compulsory certification
requirement is removed from OFPA itself, the only further measures
needed other than the *option* of certifying organically produced,
handled and sometimes processed food items via a USDA supervised
certification program; include:
Defining the penalties to be applied to any all proven instances in
which foods sold as organic (certified or not, USDA certified or not)
do not in fact comply with the definition that OFPA and the Organic
Rule specify as organic. (Once again, reaching a consensus with the
national organic community is a prerequisite here).
Defining the procedure for establishing whether or not the product
does or doesn't those standards, which obviously could include a
variety of "proofs" such as expert testimony, eye witnesses, audit
trails and lab reports, among others.
Other points that require definition are: *Who* can institute the
"Organic" or "Not Organic" definition procedure, and how this would be
carried out. We are describing what could basically called an "Organic
Court", which also would have to be established.
There must be a higher court of appeals to hear controversial cases
not resolved by lower, regional or state instances. Local and or
state governments could be invited to participate, under the same
guidelines.
OFPA must also define the procedure for determining who will pay the
costs involved in arriving at a determination, which ideally would
depend on the outcome of same. That is, when products offered to the
public as "Organic" have been proven to be "Not Organic", the cost
would logically borne by the party committing the fraud. By the same
token, a determination that a product sold as "Organic" *is* indeed
"Organic" (by virtue of it's nature as determined by the procedure
instituted for that purpose, rather than through a prior certification
process - USDA supervised or otherwise), in those instances the costs
involved would be paid by the party making the claim to the contrary
(the party that instituted the process, that called for the
determination).
The determination proceeding could be called for by the buyer, a
competitor, the grower or distributor itself or any interested third
party. Whether or not a reasonable doubt must exist as a basis for
initiating the process and what would constitute this are options that
could be considered
Class action claims could also be instituted, as well as class action
defense actions. This might be appropriate when a third party
certifier is involved. The certifying organism could offer
certification verification insurance as part of it's service, so that
the costs of a given defense would be born by those certified by that
organism, as a whole. (While the contract used by the certifier could
contain a clause that terminates the relation if fraud has been
proven, the certifier shold be held responsible for his certification
process, rather than relinquish same).
The same Tribunes could also be considered competent to hear claims
made against conventional growers that may not be complying with
current EPA, FDA or USDA legislation. Obviously, the participation of
these institutions could figure in the procedure in a fundamental way,
where an adequate degree of competence and preparation have been
established on their part.
This also points the way toward legislating mandating further studies
which focus on health and environmental issues related to food, as
well as the promotion and development of non-contaminating
technologies for implementing sustainable agricultural production
systems and of course, the establishment of economic indicators that
take environmental costs into consideration, when calculating the true
costs of a food production system, so that the proper compensatory
mechanisms (i.e., incentives and disincentives) can applied by
legislators when funding is relegated for programs that meet
environmental / health criteria, rather than the reverse.
Legislation requiring that these factors be given priority would also
be appropriate, with the regulatory framework described here.
I believe there is no other method capable of assuring a given product
is or isn't in fact organic with any real degree of certainty. Given
the way OFPA reads at present, it's certain abuses *will* occur on
four fronts:
1).- Products not truly organic will be certified as such, despite the
procedures OFPA stipulates
2).- Products that *are* truly organic in practice and substance will
either *not* be able to be legally sold as organic, and
3).- The cost of organic products will be elevated significantly under
circumstances that often will not require this.
4).- As things stand, no or insufficient recourse has been provided
for appealing false determinations made by USDA supervised certifying
organisms. Once again, a non compulsory certification framework would
rectify this error, now capable of generating multiple injustices.
Lastly, the legal basis for prohibiting states from mandating
compulsory certification should also be investigated.
Douglas Hinds
P.S. With reference to Andy Clarks excellent suggestions regarding
questions appropriate to the issue of OFPA's creation, perhaps Larry
would be kind enough to share with us his own first hand experience
(mentioned previously) after being asked by an agency which had
received a federal grant for this purpose, to organize at least one of
the events that had been programmed as a preliminary to OFPA; and what
that led to, in terms of the later role played by these same OFPA
"organizers".
(He will have to decide whether or not names should mentioned. My own
feeling is that the principle involved is the more important issue,
rather than who these people happened to be. The point being, abuses
did occur within the process of consulting the public as a preliminary
to OFPA).
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