SAN FRANCISCO (CN) — A legal fight over whether hydroponic crops can be labeled “organic” played out Wednesday at the Ninth Circuit, where a panel of judges seemed unconvinced that dirt is a required component of organic growing.
Along with the Center for Food Safety, some of the nation’s oldest organic farms sued the U.S. Department of Agriculture after the agency denied a petition to make hydroponic crops ineligible for organic certification in 2020.
Northern California farmers argue that it took decades to build the farming practices that earned them the right to call their produce organic only to be undercut by hydroponic producers who piggyback on the label without putting in the work.
But in siding with the agency, U.S. District Judge Richard Seeborg found that nothing in the Organic Foods Production Act of 1990 categorically bans non-soil-grown crops from being labeled “organic.”
The appellate panel seemed to agree, zeroing in on section 6512 of the OFPA, which says, "If a production or handling practice is not prohibited or otherwise restricted, it's permitted."
“Where does it say everything has to be grown in soil?” Senior Circuit Judge Susan Graber asked senior attorney Sylvia Wu with the Center for Food Safety at oral argument Wednesday. “There is kind of a catchall that if it's not prohibited it's ok. So where is production in water and other media other than soil prohibited?”
Wu noted that the statute, on the books since 1990, specifies that farmers must submit an organic plan showing that their practices foster “soil fertility” through techniques like proper tillage, crop rotation and manuring.
U.S. International Trade Judge Miller Baker, sitting on the panel by designation, observed that hydroponic growers could qualify under that scheme.
"Isn't it true that simply by not using soil, hydroponic farming actually fosters fertility because it's not depleting the soil?” he asked.
“It's possible one can construe it that way, but that's not what USDA did here,” Wu said. “USDA just waived the requirement and said it doesn't matter whether or not hydroponic production fosters soil fertility. They don't need to show that, they don't need to build in any practices or prove that as part of their farming, whereas my client does."
Wu said the statute assumes that organic production farms are soil-based.
“It didn’t need to say so because soil-building was understood to be synonymous with organic farming,” she said, adding that soil fertility involves more than just not disturbing farmland.
“You’re relying upon this provision to make this rule and I just don’t agree with your reading,” Baker countered. “And that’s a central part of your case; that’s really all you have.”
Giving the example of cherry tomatoes sold at a grocery store, Wu said the USDA’s petition denial results in two sets of identical tomatoes, but only one that actually meets organic standards.
"My client has to engage in a bunch of practices in order to grow those tomatoes. On the other hand for hydroponic growers, it’s unclear what production standards would apply to them," she said.
Graber, a Clinton appointee, said a hydroponic producer may not even be a farm since the statute only uses the word in reference to “things grown in soil;” in which case the soil-fertility requirement would not apply.
Wu said Congress used the word farm expansively to cover any crop grower, and to conclude otherwise would be unreasonable.
The panel asked no questions of the government’s counsel, a rarity in the Ninth Circuit, before taking arguments under submission.
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