Judge Unlikely to Ban Hydroponic Crops From Organic Label

Arguments that Congress intended to ban hydroponically grown crops from organic certification did not appear to persuade a judge overseeing a legal dispute over what foods can be labeled “organic.”

SAN FRANCISCO (CN) — In a legal battle over what constitutes organic farming, a federal judge signaled Thursday he is unlikely to find a 1990 law forbids labeling hydroponic and other crops not grown in soil as organic.

Joined by organic farmers and trade groups, the Center for Food Safety sued the U.S. Food and Drug Administration this past March after the agency denied a petition to make hydroponic crops ineligible for organic certification.

The petitioners argued the Organic Foods Production Act (OFPA) of 1990 requires organic farmers to use techniques, such as crop rotation, that “foster soil fertility.” That requirement is a hurdle they say hydrophonic producers can’t overcome because their crops are grown in air or water with nutrient-rich solutions, not soil.

During a virtual hearing Thursday, U.S. District Judge Richard Seeborg said he does not read the law as categorically banning all non-soil-grown crops from being labeled “organic.”

“I don’t see anything in the statute that says non-soil production is outside the realm of what can be considered organic under the OFPA,” Seeborg said.

As of January 2019 when the plaintiffs filed their petition, the USDA had certified at least 41 hydroponic operations as organic. The petitioners say those certifications create inconsistent standards that weaken the integrity of the “organic” label.

One of the plaintiffs, Swanton Berry Farms, grows berries in Santa Cruz and San Mateo Counties in California. The organic berry farm says it spent years developing soil-building techniques to produce large enough quantities of quality strawberries to make its business profitable.

The lawsuit claims the traditional berry farm’s competitiveness is injured when hydroponically grown strawberries are labeled “organic” and sold in stores at prices lower than what soil-based organic farmers can match.

Defending the agency’s position, U.S. Justice Department lawyer Liam Holland insisted the law’s soil-fertility requirements only apply to crops grown in dirt.

“If it doesn’t have soil, then there’s no applicability of the soil standards,” Holland said.

Because the OFPA does not explicitly ban hydroponics from organic certification, Holland said the USDA had every right to deny a petition seeking to exclude non-soil-grown crops.

Representing the petitioners, attorney Sylvia Shih-Yau Wu said the question is not whether the law prohibits hydroponic crops, but rather what standards Congress intended to impose on growers when it passed the law 30 years ago.

She noted that Vermont Senator Patrick Leahy, who introduced the OFPA in 1990, sent a letter to the USDA in 2016 urging the agency to expel hydroponics from the organic label. Leahy stated that “[f]armers who have advised me since before I wrote [OFPA] see soil as fundamental to organics.”

In 2010, the National Organics Safety Board, a 15-member group that helps develop standards for organic production, recommended that hydroponics be disqualified from obtaining organic certification.

The board stated that the statutory framework makes clear that “systems of crop production that eliminate soil from the system, such as hydroponics or aeroponics, can not be considered as examples of acceptable organic farming practices.”

In 2016, two of three subcommittees formed as part of a Hydroponic Task Force to review organic certification rules found non-soil-grown crops did not meet the law’s soil-fertility requirements. One of the two subcommittees recommended that a limited subset of hydroponic producers be eligible for organic certification. The other advocated an outright ban.

Wu said the USDA was “repeatedly told” by these groups that hydroponic operations could not meet the legal requirements for organic certification, yet it chose to do nothing.

The USDA maintains the soil-production standards only apply to farmers who grow their crops in soil.

Citing the Supreme Court’s 2007 ruling in Massachusetts v. EPA, Holland said the court’s role is “extremely limited and highly deferential” to the agency’s decision in a case challenging the denial of a petition for rulemaking.

Seeborg agreed that if the 2007 decision applies, it would make it harder for the petitioners to prevail in their lawsuit.

“If Massachusetts v. EPA is our guide here, the language of that case is extreme deference,” Seeborg said.

Wu countered that the precedent established by that 2007 decision only applies when the agency’s decision is based on technical or scientific expertise, not statutory interpretation.

“This isn’t a ‘deference on steroids case,’” Wu said. “This is an [Administrative Procedure Act] ‘contrary to law’ case.”

“To be upheld, the denial has to be reasonable based on the facts before it and be compliant with the law,” she added.

Despite her impassioned pleas, Seeborg appeared poised to rule in the USDA’s favor and find that hydroponically grown crops can be labeled “organic.”

“None of the provisions you point me to reflect some notion that it’s intended to exclude other forms of production,” the judge said.

After about an hour of debate, Seeborg took the arguments under submission.

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