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Ninth Circuit finds hydroponic crops can be labeled organic

Food does not have to be grown in soil to merit the "organic" label, a three-judge Ninth Circuit panel affirmed Thursday.

SAN FRANCISCO (CN) — Hydroponically grown crops can be considered organic, a Ninth Circuit panel ruled Thursday, upholding a federal judge’s refusal to bar hydroponic growers from using the label.

The Organic Foods Production Act, 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.

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 their petition requesting a rule that would 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. In hydroponic farming, plants grow in sand, gravel or liquid with added nutrients but no soil.

In a March 2021 ruling, U.S. District Judge Richard Seeborg wrote that he does not read the law as categorically banning all non-soil-grown crops from being labeled “organic.”

In their appeal, the farmers and trade groups argued that because hydroponic crops do not use soil, they cannot as a matter of course comply with the law's requirement that their crop plans “contain provisions designed to foster soil fertility.”

But the USDA interpreted that provision to simply mean that if crops are grown in soil, growers must take steps to protect that soil’s “fertility” and “organic content.”

In a four-page, unpublished memorandum, the panel sided with the USDA’s interpretation and affirmed Seeborg’s ruling.

Their decision comes as little surprise. At oral argument in July, the panel zeroed in on section 6512 of the OFPA, which says, "If a production or handling practice is not prohibited or otherwise restricted, it's permitted."

The panel comprised Senior U.S. Circuit Judge Susan Graber, a Bill Clinton appointee, U.S. Circuit Judge John Owens, a Barack Obama appointee, and U.S. International Trade Judge M. Miller Baker, a Donald Trump appointee sitting by designation.

The Center for Food Safety did not respond to a request for comment Thursday.

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