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The Organic Foods Production Act of 1990 and Its
Impending Regulations: A Big Zero for Organic Food?
KENNETH C. AMADITZ *
I. INTRODUCTION
Organic food is everywhere.1 Once found only in natural food shops and the dusty
corners of conventional groceries, organic food has hit the mainstream market.2 Since
1990, organic sales have skyrocketed at the rate of twenty percent per year, propelling
organic food to the status of a legitimate food niche3 with annual sales between $2.9
and $3.3 billion.4 Large-scale distributors and marketers, particularly chains such as
Whole Foods and Fresh Fields, have been stocking their shelves with organics to take
advantage of this booming market.5 Traditional grocers have followed suit in a “domino
effect,”6 so that a bounty of organic items (literally from soup to nuts) currently is
available to the average consumer.7
Shopping for organic food, however, can be a nightmare. The consumer must
distinguish organics from a dizzying array of foods labeled “ecologically grown,”
“natural,” “wild,” and “residue free.”8 Furthermore, the organic food labels themselves can be a confusing hodge-podge of state seals, third-party certifications, and
broad authenticity claims. For example, a bag of carrots currently available in supermarkets bears a seal on the front of the package that states “Organically Grown in
Accordance with the Organic Food Act of 1990.” On the back of the package are both
*
Mr. Amaditz is a law student at the University of Virginia School of Law, Charlottesville, VA. This article
won Second Place in the 1996-1997 H. Thomas Austern Memorial Writing Competition sponsored by FDLI.
1
See Organic Standards Issues Pernicious and Plentiful, FOOD CHEMICAL NEWS, Sept. 21, 1992, available in 1992 WL 2212231; Anne Day, Organic Harvest Hits Its Stride, ORGANIC TIMES, Sept. 1995, available
in <http://www.newhope.com/public/nfm/OT/Sep_95/OT_harvest. html>.
2
See Carole Sugarman, In for the Long Haul: Organic Produce Isn’t Small Potatoes Anymore, WASH.
POST, Sept. 13, 1995, at E1; Kate Murphy, Organic Food Makers Reap Green Yields of Revenue, N.Y. TIMES,
Oct. 26, 1996, at A37; David Merrefield, A Natural Reaction, SUPERMARKET NEWS, Nov. 11, 1996, at 2.
3
See Sugarman, supra note 2, at E1; Barbara DeLollis, Organic Farmers Debate Coming Regulation:
USDA to Issue National Standards for Growing Industry, S.F. EXAMINER, Oct. 23, 1995, at B4.
4
DeLollis, supra note 3, at B4; Murphy, supra note 2, at A37; Organic Foods Now Encompass a Wider
Variety of Foods Which are Gaining Acceptance and Popularity Among Consumers, FOOD CHEMICAL NEWS,
Sept. 9, 1996, available in 1996 WL 8855898.
5
See Sugarman, supra note 2, at E1; Kellyn Betts, Sustaining the Earth, E, Oct. 1, 1994, at 50. See also
Murphy, supra note 2, at A37 (chronicling the recent mergers of Whole Foods with Fresh Fields and Alfalfa’s
with Wild Oats Markets, creating two organic “powerhouses” with well over 100 U.S. outlets).
6
Sugarman, supra note 2, at E1. See also Murphy, supra note 2, at A37; Merrefield supra note 2, at 2;
Julie C. Boehning, Natural Selections, SUPERMARKET NEWS, Nov. 11, 1996, at 43 (quoting the manager of organic products for Maryland-based Giant Foods, who stated that the store’s organic food section is “sort of our
answer to Fresh Fields”).
7
See, e.g., Survey Finds “Staggering” Selection of Organic Grocery Items, FOOD LABELING NEWS, July
28, 1994, available in 1994 WL 2550497 (reporting results of a 1994 survey conducted by environmental
groups that found nearly 900 organic foods in California stores); Murphy, supra note 2, at A37 (“[t]oday, there’s
an organic merlot to go with your organic fettucine Alfredo, and a dish of organic mango gelato for dessert.”).
Conventional supermarkets, which once allocated only “token” shelf space to organics, have been making more
room for these popular products. See id. at A37.
8
See John Bell Clark, Impact and Analysis of the U.S. Organic Food Production Act of 1990 With
Particular Reference to the Great Lakes, 26 U. TOL. L. REV. 323, 328 (1995).
537
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an insignia noting that the carrots are “Certified: Contains no detected pesticide residues!” and a statement that the carrots are “organically grown . . . without the use of
synthetic insecticides, herbicides, fumigants, or chemical fertilizers so that you may
enjoy a healthy . . . carrot.”9 Wading through these various seals, labels, and claims,
the consumer is left to wonder just what they mean, how they differ, and what foods
are truly organic.
In 1990, Congress passed the Organic Foods Production Act (OFPA) to help alleviate confusion over organic foods, to create a uniform standard for organic claims,
and to promote interstate commerce in organics by harmonizing regulation.10 Seven
years later, however, the actual effect of the OFPA is difficult to assess because the
U.S. Department of Agriculture (USDA) has yet to issue regulations to carry out the
Act.11 With USDA finally predicting a proposed rulemaking by the fall of 1997,12 full
implementation of the OFPA is on the horizon and the time is ripe to examine whether
the OFPA will meet the goals set out for it by Congress.
This article starts in Part II with a brief background on the need for a national
organics program, and follows in Parts III and IV with a review of the OFPA and the
recommendations of the National Organic Standards Board (NOSB), which is the
body established by Congress to advise USDA on promulgating OFPA regulations.
Part V addresses the pitfalls in both the OFPA and the NOSB recommendations that
could hinder the national organics program from achieving the objectives laid out by
Congress. Finally, the article concludes in Part VI with recommendations as to how
USDA can overcome the problems outlined in Part V and can implement the OFPA to
meet its explicit goals.13
II. THE NEED FOR NATIONAL REGULATION OF ORGANIC FOOD
By the early 1970s, organic agriculture had attracted a small, dedicated group of
earthy farmers.14 As the demand for organic food increased, so did the number of
9
California “Choice Cut” Carrots, product of Cal-Organic Farms, Lamont, CA (item purchased by author
Feb. 1996, Charlottesville, VA). Unfortunately for the consumer, the label does not specify whether the “Organic
Food Act of 1990” means the California Organic Food Act of 1990, CAL. HEALTH & SAFETY CODE §§ 110810110958 (West 1996), or the federal Organic Foods Production Act of 1990, Pub. L. No. 101-624, 104 Stat.
3359 (codified at 7 U.S.C. §§ 6501-6522 (1994)). Presumably, the producer meant the California Act, but the
potential for consumer confusion is obvious.
10
See 7 U.S.C. § 6501.
11
Telephone Interview with Kathy Leddy, Food Labeling Div., Food Safety Inspection Serv., USDA (Mar.
11, 1997). See also Letter from Robert B. Anderson, Chairperson, National Organic Standards Board, transmitting recommendations to the Secretary of Agriculture (Nov. 22, 1996); Clark, supra note 8, at 325.
12
Telephone Interview with an official who wished to remain nameless, Agricultural Marketing Serv.,
USDA (Apr. 15, 1997). This official noted that the draft USDA rulemaking had been classified as “significant,”
thus subjecting it to detailed scrutiny by the Office of Management and Budget.
13
The scope of this article is limited to whether or not the OFPA can meet the goals set for it by Congress.
As such, the article does not address normative issues, such as the correct definition of organic or whether
organics should be regulated at all. Nor does the article examine the environmental soundness of the OFPA or
organic farming. Any consideration of these issues is limited to the extent that they impact the congressional
goals of national uniformity, consumer knowledge, and the free flow of interstate commerce. For a critical perspective on the OFPA’s definition of organic, see Clark, supra note 8. For a critical perspective on national
regulation of organic food, see infra note 179.
14
See Kyle Lathrop, Pre-empting Apples with Oranges: Federal Regulation of Organic Food Labeling,
16 J. CORP. L. 885, 886 (1991). For a history of organic food production, see Ken Mergentime, Organic Industry Roots Run Deep, ORGANIC TIMES (1994), available in <http://www.newhope.com/public/nfm/nfm_backs/
OT_94/OT_history.html>.
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organic growers and, unfortunately, the number of companies that were willing to
make misleading or false claims about the organic nature of their products.15 Because
no regulations existed, unscrupulous producers could proffer almost any organic claim
to render their food more marketable.16
In the absence of any strong federal action to proscribe or regulate organic claims,
a number of states attempted to fill the void.17 Responding to reports of inconsistency
and fraud, Oregon passed the first organic certification law in 1973. 18 Over time,
more states took action to regulate organic foods. By 1990, twenty-two state legislatures had passed organic food statutes,19 but these laws varied dramatically: some
states established tough labeling schemes and restricted organic certification to state
agencies, while other states allowed private certification or provided for no certification whatsoever.20 Under these divergent standards, only eleven states “[did] much
more than benignly ignore” organic food claims.21 Moreover, in the twenty-eight states
without organic food statutes, producers and marketers could continue to make capricious organic claims.
The resulting patchwork of state regulation encouraged inconsistency in organic
food labeling, engendered confusion among consumers, and played havoc with interstate commerce in organics.22 Organic farmers and food processors faced both the
burden of labeling food to meet conflicting standards and the possibility that food
deemed organic in their home state would not qualify as organic across the state border.23 Food retailers and distributors were concerned about the authenticity of organic
items under the varied state laws; consequently, they were reluctant to purchase organic foods, and fewer organics made it to the grocers’ shelves.24 Even when organic
foods did make it to the supermarket, “consumers [were] left to decipher a confusing
array of private and State labels.”25 Food that was labeled “organic” could have contained anywhere from twenty to 100% organically-grown ingredients, making it difficult for “even the most sophisticated consumer” to know what the term “organic”
really meant.26 False and deliberately misleading labels exacerbated consumer uncertainty27 and created a “sea of counterfeit and pseudo-organic products.” 28 As a result,
some consumers and food merchandisers doubted the veracity of legitimate organic
producers’ claims and hesitated to buy their products.29
15
See S. REP. NO. 357, 101st Cong., 2d Sess., at 290-91 (1990), reprinted in 1990 U.S.C.C.A.N. 4656,
4943-44; Lathrop, supra note 14, at 890-91.
16
See Lathrop, supra note 14, at 890-91.
17
See id. at 891.
18
OR. REV. STAT. § 632.925 (1973) (now at § 616.406 (1996)). See, Lathrop, supa note 14, at 891.
19
See Lathrop, supra note 14, at 891 n.53 (complete list of state codes).
20
See Gordon G. Bones, State and Federal Organic Food Certification Laws: Coming of Age?, 68 N.D.
L. REV. 405, 408 (1992); Lathrop, supra note 14, at 892.
21
See Jim Motavelli, Goodness Guaranteed: The Federal Government Finally Puts the Seal of Approval on Organic Produce, E, Dec. 1, 1994, at 46. See also Lathrop, supra note 13, at 891-93; Bones, supra
note 20, at 407-08.
22
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4943; Lathrop, supra note 14, at 893; Bones,
supra note 20, at 425; Clark, supra note 8, at 325.
23
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4943; Bones, supra note 20, at 425.
24
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4944; Bones, supra note 20, at 425.
25
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4944; Bones, supra note 20, at 425.
26
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4944; Bones, supra note 20, at 425.
27
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4944; Bones, supra note 20, at 425; Lathrop,
supra note 14, at 890-91.
28
Clark, supra note 8, at 325.
29
See id.
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By the late 1980s, the lack of national uniformity in organic food production
threatened to stunt the growing organic food production network.30 Nevertheless, demand for organic food continued to rise. In 1989, the infamous Alar pesticide scare
appeared in the national press.31 As the Environmental Protection Agency (EPA) banned
the chemical in the wake of public outrage over the exposure of children to pesticides,
organic producers experienced a welcome and renewed consumer preference for “grown
without” foods.32 A Harris Poll conducted in that same year revealed that eighty-four
percent of consumers would purchase organic foods if given a choice, and forty-nine
percent would pay more for organics.33 Consumers wanted organic foods, and few
analysts doubted that the market would continue to grow.34 A national standard for
organic foods seemed to be the best way to encourage this burgeoning market, and a
collection of state agriculture departments, national farmers’ organizations, organic
industry trade associations, and consumer interests spearheaded the call for a national
organic program.35
III. THE ORGANIC FOODS PRODUCTION ACT
Congress passed the OFPA on November 28, 1990, with the goals of “(1) [establishing] national standards governing the marketing of certain agricultural products
as organically produced products; (2) [assuring] consumers that organically produced
products meet a consistent standard; and (3) [facilitating] interstate commerce in fresh
and processed food that is organically produced.”36 Congress acknowledged that organic food comprised only two percent of the nation’s food production.37 Nevertheless, national legislation was justified because the organic market was “growing exponentially,” there was a need to clarify organic labeling to complement other government labeling efforts, and a national program would establish a level playing field for
organic farmers.38
The OFPA strives to meet these goals by setting national standards for organic
food production and handling, which are implemented by USDA.39 Producers and
handlers who meet the national organic standards can use a federal seal of approval
on their organic food labels.40 Those who cannot meet the federal standards are barred
from making any organic labeling claims.41
The Act regulates organic food production and handling from the soil to the
supermarket. At the center of the OFPA scheme is the “organic plan.” Each handler
and producer must create an organic plan that meets specific organic production standards, such as crop rotation and management of wild crops.42 The handler or producer
must submit the plan to a certifying agent and to the state organic certification program, if one is established.43 Once the plan is approved, the producer must abstain
30
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4943.
See, e.g., Clark, supra note 8, at 327.
32
See id.
33
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4943; Lathrop, supra note 14, at 890.
34
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4944.
35
See id.
36
7 U.S.C. § 6501.
37
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4944.
38
See id.
39
7 U.S.C. §§ 6502(19), 6503(a).
40
Id. § 6505(a).
41
Id.
42
Id. § 6513.
43
Id.
31
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ORGANIC FOODS PRODUCTION ACT OF 1999
541
from using certain crop production methods and materials, such as synthetic fertilizers or natural poisons that persist in the environment.44 The Act also prohibits the use
of synthetic chemicals (such as pesticides and herbicides) in the production or handling of food, unless the chemical is expressly exempted by regulation.45 Handlers and
producers are subject to at least one annual inspection, and their food products must
be tested for pesticide residues by certifying agents.46 Additionally, organic producers
and handlers must keep detailed records of their operations, and can lose their labeling privilege and face fines of up to $10,000 for violations of the Act.47
Six specific OFPA provisions merit special notice.
A. Establishment of the National Organic Standards Board
The Act creates NOSB, which is comprised of fifteen members from varied backgrounds: organic farming and handling, organic retailing, environmental protection
and resource conservation, consumer interests, toxicology or biochemistry, and organic certification.48 NOSB’s role is to advise USDA on OFPA implementation.49
B. Defining “Organic”
Unfortunately for those who hoped that Congress would end the debate once and
for all, the OFPA contains no clear standard for what “organic” truly means. Rather,
Congress obliquely defined “organically produced” as “an agricultural product that is
produced and handled in accordance with this chapter.” 50 Congress’ reluctance to
define organic is apparent in the legislative history, where the lawmakers noted that
“[o]rganically produced food defies simple definition.”51 Congress also went to great
lengths to emphasize that organic claims under the OFPA describe a method of production, as opposed to other potential health or quality labeling claims.52 The actual
meaning of “organic” under the OFPA will be determined by the regulations in which
USDA, advised by NOSB, will list synthetic chemicals approved for use in organic
production and establish maximum allowable pesticide residues for organics.53
The OFPA’s meaning of “organic” will depend in part on the composition of the
National List.54 The Act charges USDA and NOSB with establishing a National List
of synthetic chemicals that are approved for use in organic production. 55 NOSB can
propose substances for inclusion on the National List only if: 1) use of the substance is
not harmful to human health or the environment, it is necessary to production or
handling because other natural substitutes are unavailable, and it is consistent with
organic farming and handling; and 2) the substance is used in production and falls
44
Id. § 6508.
Id. § 6504.
46
Id. § 6506(a).
47
Id. § § 6511(a)-(d), 6519(a).
48
Id. § 6518.
49
Id. § 6518(k).
50
Id. § 6502(14).
51
S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4946.
52
See id. at 4946-47 (“This legislation does not attempt to make scientific judgments about whether
organically produced food is more healthful, nutritious, or flavorful than conventionally produced food . . . . The
Committee contends that organically produced food is food produced using certain defined materials and production methods.”).
53
7 U.S.C. §§ 6517-6518.
54
Id. § 6517.
55
Id. § 6517(a)-(d).
45
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within one of approximately ten categories enumerated in the Act,56 or it contains
synthetic ingredients not classified by EPA as inerts of concern, or it is used in handling and is nonsynthetic, but not organically produced.57 The Act further provides
seven criteria for NOSB to use in evaluating substances for inclusion on the National
List.58
Final regulations for allowable pesticide residues also will constitute part of the
Act’s meaning of “organic.” In the legislative history, Congress made clear that a
USDA seal of organic approval does not guarantee residue-free food.59 Congress believed that organic farmers who strictly follow the OFPA requirements may not be
able to avoid minimum levels of pesticides in food, due to the persistence of pesticides
in the soil and inadvertent drift from neighboring farms.60 Nevertheless, Congress
decided that residue testing should be part of the OFPA regulatory scheme for two
reasons. First, residue testing would serve as a critical check on the system by ensuring that organic farmers abstain from synthetic pesticide use. 61 Second, it would
“bridge[] the concept that organically produced food is defined by the manner in which
such food was produced and the widely-held concept that organically produced food
has fewer residues.”62 The legislators emphasized that residue testing would ensure
that consumers who paid for food with less pesticide residue would get what they
wanted.63 The Act does not set specific residue levels; instead, it leaves this determination to USDA and NOSB. Congress anticipated that the final levels would be somewhere between one and ten percent of EPA tolerance levels.64
C. Organic Food Labeling
The OFPA gives USDA the discretion to enact a three-tiered labeling hierarchy.65
Agricultural products that contain at least ninety-five percent organic ingredients and
limit the remaining five percent of ingredients to National List substances will qualify
as first-tier organic foods.66 Only first-tier foods may use the USDA seal of organic
approval.67 The remaining two tiers are discretionary and focus on processed foods
that contain less than ninety-five percent organic ingredients.68 Congress allowed USDA
the flexibility to establish these lower tiers so that food processors would not be dis56
Id. § 6517(c)(1)(B)(i). These potential National List substances are those that contain an active synthetic ingredient in one of the following categories: copper and sulfur compounds; toxins derived from bacteria;
pherom horticultural oils, fish emulsions, treated seed, vitamins and minerals; livestock parasiticides and medicines and production aids including netting, tree wraps and traps, sticky barriers, row covers, and equipment
cleansers.
57
Id. § 6517(c)(1).
58
Id. § 6518(m). The seven criteria are: 1) the potential that such substances will have detrimental reactions with other farming materials; 2) the toxicity and environmental persistence of the substance and its products; 3) the probability of environmental contamination during production, use, or misuse of the substance; 4)
human health effects; 5) effects on the ecosystem; 6) available alternatives; and 7) compatibility with sustainable
agriculture. Id. § 6518(m)(1)-(7).
59
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4953.
60
See id. at 4954.
61
See id.
62
Id.
63
See id.
64
See 7 U.S.C. § 6518(k)(5); S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4955.
65
See 7 U.S.C. § 6505; S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4955-56.
66
See 7 U.S.C. § 6510(a)(4); S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4955-56.
67
See 7 U.S.C. § 6505(a); S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4955-56.
68
7 U.S.C. § 6505(c).
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ORGANIC FOODS PRODUCTION ACT OF 1999
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couraged from purchasing organic ingredients simply because their final products
would not qualify for the official ninety-five percent seal.69 The second tier allows
foods that contain more than fifty percent organic ingredients to use the term “organic” on the principal display panel (PDP) insofar as the term describes the organically produced ingredients.70 Third-tier foods contain less than fifty percent organic
ingredients and may use the word “organic” only on the ingredient panel to describe
organically produced components.71 NOSB has taken a lead role in deciding how
USDA should implement this discretionary labeling hierarchy.72 Its recommendations
are examined in Part IV.
D. State Organic Food Regulation
The Act addresses state authority in two contexts: labeling and certification. With
regard to labeling, the Act prohibits the use of “organic” in any labels that do not meet
the OFPA standards.73 States, however, can provide for their own labels for organic
foods as long as the state labels accompany the federal label and are approved by
USDA.74 Thus, the Act allows state labels only when the state program is as strict, or
stricter, than the national labeling and production program.75 States also are free to
establish their own organic certification programs, subject to approval by USDA.76
The state programs may contain standards that are more restrictive than the federal
program; additional state requirements, however, must be consistent with and further
the purposes of the OFPA, while not discriminating against organically produced foods
from other states.77 USDA must approve any “reasonable” plan that meets the OFPA
requirements.78 These provisions reflect congressional ambivalence over the extent of
allowable state regulation. On the one hand, Congress acknowledged that most organic production expertise resides at the grass-roots level and, thus, federal intrusion
should be kept to a minimum.79 In addition, the legislators recognized that states need
to develop standards that address specific local and regional needs.80 On the other
hand, Congress was concerned that restrictive state standards could disrupt interstate
commerce, and noted that it did not anticipate a need for excessive state rules.81 As a
result of this ambivalence, the Act sends mixed signals about the extent of federal
preemption in organic food production and labeling.82
69
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4956.
7 U.S.C. § 6505(c)(1).
71
Id. § 6506(c)(2).
72
See NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATION (GENERAL ORGANIC FOOD LABELING
STANDARDS) (June 5, 1994); NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATION ADDENDUM NUMBER 1
(Oct. 14, 1994); NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATION ADDENDUM NUMBER 10 (Oct. 31,
1995).
73
7 U.S.C § 6505(a).
74
See 7 U.S.C. § 6507(b)(1); S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4946-47.
75
7 U.S.C. § 6507(a)-(b).
76
Id.
77
Id. § 6507(b)(2). One exception is state actions that are based on public health and safety, which are not
limited by federal standards. See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4949-50.
78
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4949.
79
See id. at 4945.
80
See id. at 4949.
81
See id.
82
See Lathrop, supra note 14, at 907-13.
70
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E. Relationship Between OFPA and Existing Federal Food Safety Laws
Nothing in the OFPA exempts organic foods from other federal food safety and
production statutes.83 Therefore, USDA authority under the Federal Meat Inspection
Act,84 the Poultry Products Inspection Act,85 and the Egg Products Inspection Act86
remains intact. Likewise, the Food and Drug Administration (FDA) retains its authority to regulate organic foods under the Federal Food, Drug and Cosmetic Act
(FDCA).87 Although the OFPA purports to establish national standards for the marketing of organic foods, the Federal Trade Commission (FTC) will presumably continue to exercise authority over food advertising.88
F. Food Claims That Compete With Organic Claims
In the OFPA legislative history, Congress acknowledged that consumers may
mistake claims of “produced without pesticides” or “residue-free” with organic production claims.89 Nevertheless, the legislators made clear that the OFPA does not
affect farmers and food producers who truthfully claim that their products are produced without pesticides, as long as they do not make organic claims.90 To help mitigate consumer confusion, Congress encouraged USDA and the organic food products
industry to educate consumers about the differences between these competing claims.91
The lawmakers did not address other competing labeling claims, such as “natural” or
“sustainable.”
Congress passed the OFPA in 1990 with a directive to USDA to issue implementing regulations within 540 days.92 The Act was a strong statement in favor of federal
standards for organic foods, but its provisions, in particular the six highlighted above,
raised some vexing issues and failed to provide definitive answers to some troubling
questions. The job of sorting out some of the OFPA’s most bedeviling details was
assumed by NOSB, which has produced a spate of recommendations for USDA’s regulatory implementation of the Act.
IV. THE NATIONAL ORGANIC STANDARDS BOARD RECOMMENDATIONS
The OFPA charges NOSB with the unenviable task of developing recommendations for implementing some of the Act’s most difficult provisions.93 Given this bur83
See 7 U.S.C. § 6519(f); S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4947.
Pub. L. No. 59-242, 34 Stat. 1260 (1907), revised by the Wholesome Meat Act, Pub. L. No. 90-201, 81
Stat. 584 (1967) (codified as amended 21 U.S.C. §§ 601-695 (1994)).
85
Pub. L. No. 85-172, 71 Stat. 441 (1957) (codified as amended 21 U.S.C. §§ 451-470).
86
Pub. L. No. 91-597, 84 Stat. 1620 (1970) (codified at 21 U.S.C. §§ 1031-1056).
87
Pub. L. No. 75-717, 52 Stat. 1040 (1938) (codified as amended 21 U.S.C. §§ 301 et seq.).
88
See generally PETER BARTON HUTT & RICHARD A. MERRILL, FOOD AND DRUG LAW CASES AND MATERIALS
187 (2d ed. 1991) (tracing history of FTC-FDA disparity over standard for food advertising); Michele M. Bradley, The States’ Role in Regulating Food Labeling and Advertising: The Effect of the Nutrition Labeling and
Education Act of 1990, 49 FOOD & DRUG L.J. 649, 650-51 (1994) (examining FTC’s authority over food
advertising and the divergence between FTC and FDA policies for advertising and labeling claims).
89
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4954.
90
See id. at 4946-47.
91
See id. at 4954.
92
7 U.S.C. § 6521(a).
93
Id. § 6518(k). See also Organic Standards Issues Pernicious and Plentiful, supra note 1 (reviewing
early NOSB controversy over the OFPA standards).
84
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ORGANIC FOODS PRODUCTION ACT OF 1999
545
den, it comes as no surprise that NOSB has been at the center of controversy since its
inception. Criticism has focused on NOSB’s delay in providing recommendations to
USDA.94 Detractors have charged NOSB and USDA with a “general lack of initiative”95 and “a dismal record” of rule promulgation.96 Moreover, critics assert that
NOSB is “woefully lacking in organic expertise” and its members are hostile towards
any promulgation of authentic organic standards.97
These critiques notwithstanding, external factors have played an important part
in delaying NOSB action. According to one commentator, the Bush Administration
opposed organic agriculture and dragged its feet; NOSB was not appointed until 1992.98
Delays were compounded by funding difficulties,99 bureaucratic confusion caused by
the Bush-Clinton transition, and a determined NOSB effort to allow high levels of
public participation.100
NOSB persevered, and began issuing recommendations in 1994. By the close of
1996, NOSB had produced a tome of proposals, covering a broad range of OFPA
issues.101 Several of the NOSB recommendations are pertinent for the purposes of this
article.
The first relevant recommendation concerns the definition of “organic.” NOSB
defines “organic” to be a labeling term that simply denotes food that has been produced in accordance with OFPA.102 The Board recognizes organic agriculture as “an
ecological production management system” with the primary goal of “optimiz[ing]
the health and productivity of interdependent communities of soil life, plants, animals
and people.”103 Thus, NOSB has provided some insight into the meaning of organic
agriculture under the OFPA, while adhering to Congress’ vision of organic as a means
of production rather than a result.
The Board’s recommendation on residue testing further illuminates the practical
meaning of “organic” under the OFPA. Following Congress’ lead in the legislative
history, NOSB recommends that foods labeled as organic should not have pesticide
residues in excess of FDA action levels or five percent of the EPA tolerance.104 Fur94
See, e.g., Clark, supra note 8, at 330-35; Motavelli, supra note 21, at 46; Terrence J. Centner & Kyle W.
Lathrop, Differentiating Food Products: Organic Labeling Provisions Facilitate Consumer Choice, 1 DRAKE
J. AGRIC. L. 30, 33 (1996).
95
Centner & Lathrop, supra note 94, at 33.
96
Clark, supra note 8, at 331.
97
Id.
98
See id. at 331.
99
See DeLollis, supra note 3, at B4.
100
See Motavelli, supra note 21, at 46 (citing Michael Sligh, former NOSB Chairman). Compare Clark,
supra note 8, at 332 (criticizing the amount of public input into NOSB decisionmaking).
101
See NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATIONS (June 1-4, 1994) (covering crop
production standards, exemptions for small farmers, residue testing, planting stock policies, the organic farm
plan, and emergency spray exemptions); NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATIONS (June 24, 1994) (covering livestock production standards); NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATIONS (June 4, 1994) (covering the organic handling plan, and requirements for organic handlers); NATIONAL
ORGANIC STANDARDS BOARD, FINAL RECOMMENDATION (June 3, 1994) (covering importation policies); NATIONAL
ORGANIC STANDARDS BOARD, FINAL RECOMMENDATION (June 4, 1994) (covering accreditation for organic certifiers); NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATION ADDENDA NUMBERS 1-30 (Oct. 14, 1994-Sept.
20, 1996) (covering a wide range of topics from botanical pesticides to organic cotton). See also supra note 72
(covering food labeling standards).
102
See NATIONAL ORGANIC STANDARDS BOARD, DEFINITION OF “ORGANIC” (Apr. 1995).
103
Id.
104
See NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATIONS 10-13 (June 1-4, 1994) (noting that
this residue level comprises the “unavoidable residual environmental contamination” allowed under the Act,
accounting for inadvertent residues due to drift). For more information on FDA residue standards, see 21 C.F.R.
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thermore, the Board recommends that no state be permitted to adopt pesticide residue
levels for organics that are below the FDA action levels or one percent of the EPA
tolerance.105 Echoing congressional sentiment, NOSB emphasizes that residue testing
is necessary as a check on the system and to maintain consumer confidence in organic
food production.106
The practical meaning of “organic” under the OFPA also depends on NOSB’s
recommendations for National List substances. To date, the Board has proposed dozens of synthetics for inclusion on the National List.107 The proposals cover a variety of
substances, from newspaper mulch to fish products and petroleum-based oils.108 Under the proposals, some substances would be approved for use in production and others for direct application to crops; some uses would be subject to specific restrictions
(for example, petroleum-based oils would be allowed for use on woody plants for
dormant and summer pest control, but not for weed control), while other substances
would be allowed for general use.109 Once USDA reviews the proposals, it must publish the proposed National List in the Federal Register and seek public comment.110
The final List also must appear in the Federal Register, along with USDA’s responses
to public comment.111
The Board also has issued recommendations regarding the OFPA’s three-tiered
organic labeling hierarchy. Under NOSB’s preferred scheme, organic products would
fall in one of three tiers. The first tier is “organic foods,” which are foods whose
common name includes the word “organic” (such as “organic carrots”).112 Foods in
this tier must contain ninety-five percent organic products. Only these “organic foods”
may use the USDA seal, and they also may carry the seal of the certifying agent.113 The
second tier is for foods labeled “made with organic ingredients.”114 Foods in this tier
must contain at least fifty percent organic products and may not use the USDA seal or
any other emblem.115 The labels for this class of foods, however, may contain the word
“organic” on the PDP, provided that the label clearly identifies the organically produced ingredients and the type size used for the word “organic” is no bigger than
three-fourths of the type size used for the food name.116 The third tier is for foods that
§ 109 (1996) (listing official FDA pesticide tolerances under FDCA section 406); HUTT & MERRILL, supra note
88, at 297 (noting that FDA has rarely used its section 406 authority to set formal tolerances, but has relied
instead on informal “action levels”). EPA establishes pesticide tolerances for chemicals used on raw agricultural
commodities under the FDCA. 21 U.S.C. § 346a(a)(1), (b).
105
See id. See also S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4954-55. Presumably this provision is to provide for some consistency and to accommodate the New Hampshire standard (one percent of the
EPA approved level), which reportedly is the strictest in the nation. See id.
106
See NATIONAL ORGANIC STANDARDS BOARD, supra note 104, at 12.
107
See NATIONAL ORGANIC STANDARDS BOARD, SUMMARY OF NOSB RECOMMENDATIONS FOR MATERIALS CONSIDERED AT ORLANDO, FLORIDA (Apr. 1995); NATIONAL ORGANIC STANDARDS BOARD, SUMMARY OF NOSB RECOMMENDATIONS FOR MATERIALS CONSIDERED AT AUSTIN, TEXAS (Nov. 1995); NATIONAL ORGANIC STANDARDS BOARD, SUMMARY OF NOSB RECOMMENDATIONS FOR MATERIALS CONSIDERED AT INDIANAPOLIS, INDIANA (Sept. 1996).
108
See id.
109
See id. The NOSB considered the use of petroleum-based oils at its April 1995 meeting. See NATIONAL
ORGANIC STANDARDS BOARD, SUMMARY OF NOSB RECOMMENDATIONS FOR MATERIALS CONSIDERED AT ORLANDO,
FLORIDA, supra note 107, at 3.
110
7 U.S.C. § 6517(d)(4).
111
Id. § 6517(d)(5).
112
See NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATION, supra note 72, at 3.
113
See id. at 4.
114
See id. at 5.
115
See id. at 5; NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATION ADDENDUM NUMBER 10, supra
note 72, at 2.
116
See NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATION, supra note 72, at 5.
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“contain organic ingredients.”117 These foods must be comprised of at least one percent organic products, and may not use the term “organic” on the PDP.118 Producers of
these foods may not attach the USDA seal or other emblems to the food label.119 All
foods that qualify for this organic labeling hierarchy must list the percentage of organic ingredients on the ingredient display panel, and no such food is allowed to use
the term “organic when available.”120
After a slow start, NOSB has produced an abundance of recommendations. Despite criticism to the effect that the Board is diluting the proper scope of the OFPA,121
the recommendations generally adhere closely to congressional intent, and one leading environmental magazine concluded that the proposals “appear to represent a good
compromise between the different interest groups.”122 What remains unclear, however, is whether the Board’s recommendations, taken in conjunction with the statute,
can ensure that the OFPA meets the goals set for it by Congress.123
V. WHY THE OFPA MAY NOT MEET CONGRESSIONAL OBJECTIVES
On its face, the OFPA is an elegant statute. It provides a concise and comprehensive framework for the federal government’s first foray into organic food regulation.
The Act addresses many difficult issues, yet its provisions generally seem reasonable;
some are even progressive and innovative. The OFPA has received good reviews,124
and one harsh NOSB critic does not blame the Act itself for any shortcomings, surmising that OFPA is “rooted in logic, rationality, and internal consistency . . . . [It]
may represent the most commendable attempt yet to make statutory law imitate natural law.”125
An incisive examination of the OFPA and the NOSB recommendations, however,
reveals that the Act is not internally consistent. To the contrary, the OFPA seems
liable to choke on its own provisions. It suffers from sundry debilitating exceptions
and clauses, some that are intrinsic to any attempt to regulate organic foods, and
others that spring from conflicted or sloppy lawmaking. These weaknesses are likely
to preclude the emergence of a meaningful national regulatory scheme for organic
117
See NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATION ADDENDUM NUMBER 1, supra note 72.
See id.
119
See id.
120
See supra note 72.
121
See Clark, supra note 8, at 335-37.
122
Motavelli, supra note 21, at 46.
123
Although the NOSB’s recommendations are not binding on USDA, the proposed regulations are likely
to incorporate NOSB’s proposals for two reasons. First, Congress specifically charged NOSB with the role of
advising USDA on the regulations, and NOSB has spent significant time and resources developing its recommendations. Second, recent reports indicate high levels of cooperation between USDA staff and NOSB; some
recommendations have been co-authored by USDA personnel and Board members. See NOSB Finalizes Recommendations to USDA, NATIONAL FOODS MERCHANDISER, Jan. 1996, available at <http://www.newhope.com/
public/nfm/ nfm_backs/Jan_96/organic_update.html> (citing USDA organic program manager Mike Hankin,
who stated that “[a]fter four years of working together, a new level of mutual respect and trust was reached
between board members, USDA, and the organic community.”).
124
See, e.g., id.; DeLollis, supra note 3, at B4 (noting favorable reaction by some organic growers, including Craig Weakley, an NOSB member and Director of Organic Production for Muir Glen Organic Tomato
Products, who stated that “[the OFPA] adds extra cost. It adds extra work for the processor, but that’s our
guarantee . . . . It’s a burden but it’s also a tremendous claim”); Merrefield, supra note 2, at 2 (describing
retailers’ support for the OFPA). Compare Clark, supra note 8 (criticizing generally the implementation of the
OFPA); DeLollis, supra note 3, at B4 (recounting critics’ views that the OFPA will raise costs and lead to overregulation).
125
Clark, supra note 8, at 331.
118
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foods. Moreover, they render the Act incapable of meeting the goals set for it by
Congress: promoting uniformity in organic food, reducing consumer confusion over
organic food standards, and facilitating interstate commerce in organic foods.
This section considers three areas where the OFPA is likely to fail. Recommendations for surmounting these shortcomings appear in Part VI.
A. Additional State Restrictions: The Home-Field Advantage
The OFPA allows states to impose organic food production and labeling restrictions that are more stringent than the federal standard.126 Although these restrictions
are subject to USDA approval,127 Congress has directed the Secretary to approve any
“reasonable” state plan, provided that it is consistent with the federal standards, furthers the goals of the Act, and does not discriminate against organic foods from other
states.128 In addition, states retain their traditional police power to take actions that
protect health and safety.129
At the same time, Congress made the promotion of interstate commerce in organic foods one of the OFPA’s primary goals.130 In fact, Congress highlighted the
existence of divergent state standards as a major impetus for passing the Act.131 Given
the central role of varying state restrictions in creating the need for the OFPA, it is
perplexing that Congress decided to allow states to continue this practice. In doing so,
the legislators created a contradiction within the four corners of the Act: the OFPA
promotes interstate commerce and consistency while simultaneously abandoning uniformity by permitting the states to be manifestly inconsistent.
The threat to uniformity would not be so extreme had Congress provided USDA
with significant authority to reject inconsistent state restrictions. Indeed, on its face,
the OFPA seems to give USDA substantial power in this area. The Secretary is authorized to prohibit any state restriction that is inconsistent or contrary to the purposes of
the Act, or that is discriminatory toward organic foods from other states.132 Nevertheless, the disingenuousness of these criteria coupled with congressional statements in
the legislative history indicate that USDA will be relegated to only a minor
unauthoritative role in reviewing state restrictions.
The criteria that the Secretary must consider when approving or rejecting additional state requirements demonstrate why USDA must be relegated to such a role.
The first criterion is consistency. Any significant state restriction (such as a state
organic seal or a ban on a particular substance133) would be per se inconsistent with
the Act because it contravenes the goals of promoting interstate commerce and unifor-
126
7 U.S.C. § 6507(a)-(b).
Id.
128
See id. S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4949-50.
129
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4949-50. The Supreme Court has upheld state
food regulation as part of the traditional state police power. See Florida Lime & Avocado Growers v. Paul, 373
U.S. 132 (1963).
130
7 U.S.C. § 6501(3).
131
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4943-44.
132
7 U.S.C. § 6507(b)(2).
133
See Bones, supra note 20, at 430. The author suggests a pertinent example of differing state requirements: California prohibits the use of inert synthetic substances, while the OFPA, subject to National List requirements, allows the use of such substances under title 7 of the United States Code, section 6517(c)(1)(B)(ii).
Id.
127
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mity.134 The second criterion is furtherance of the OFPA’s goals. Additional state restrictions do not further the purposes of the Act because they only perpetuate the
varying state standards that prompted Congress to pass the OFPA. Finally, the third
criterion is nondiscrimination against out-of-state organic foods. Any state labeling
requirement that prompts consumers to differentiate between in-state and out-of-state
organic foods is likely to promote some buyer discrimination in favor of home-state
foods. Congress expressly stated that state labels carrying superior quality claims are
forbidden, but states can promote their own products by attaching a state organic
seal.135 It is unclear why states would need a state organic seal, as opposed to a simple
“made in state X” insignia, to promote home-grown foods, but it serves to underline
Congress’ lack of commitment to a strict nondiscrimination criterion. In summary,
Congress could not have meant for USDA to apply these criteria at face value because
virtually no additional state standard would be able to meet them.
The only available guidance on the extent of USDA’s approval authority comes
from the legislative history. In the legislative history, Congress noted that the Secretary’s
review of state plans would ensure “the overall quality and sensibility of State proposals.”136 Congress, however, also stated that the Secretary “must approve any reasonable plan that meets the requirements of this bill.”137 Congress did not elaborate on
what a reasonable plan might entail; consequently, USDA is left to search for the
meaning of “reasonable” in litigation with the states.138 Given the disingenuous criteria that Congress set for label consistency and nondiscrimination toward out-of-state
foods, it seems likely that most state restrictions will pass muster as “reasonable.” As
a result, these additional state restrictions will prevent the Act from achieving consistency and promoting interstate commerce.
B. Consumer Confusion and Marketing Muddle
When Congress passed the OFPA in 1990, it cited consumer confusion over organic food standards as a compelling reason to establish a uniform national program.139
One of the primary purposes of the Act is to make certain that organically produced
products meet a consistent standard.140 Furthermore, the lawmakers saw the OFPA as
an important step toward establishing national standards for organic food market-
134
See generally Lathrop, supra note 14, at 909 (discussing the ambiguity of the “consistency” standard
and the potential need to resolve its practical meaning in the courts).
135
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4949. In any case, superior state labeling
claims would likely be illegal under the FDCA. FDA labeling authority under section 201(n) of the FDCA and
the absence of any proof that organic foods, specifically foods produced in one state rather than another, are
better or more healthful would provide FDA with the authority to ban such claims. See 21 U.S.C. § 321(n); infra
Part V.C.
136
S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4949.
137
Id. (emphasis added).
138
See Lathrop, supra note 14, at 909; Bones, supra note 20, at 441. One potential test of the meaning of
“reasonable” is raised by the NOSB proposals, in which the Board recommended that USDA limit state discretion with regard to chemical residues. NOSB recommended a national standard of five percent of FDA action
levels, and added that states shall not lower this level beyond one percent. See NATIONAL ORGANIC STANDARDS
BOARD, supra note 104, at 13. Although it appears that the Board chose this level because it is the lowest level
currently set by any state, see S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4954-55, USDA’s authority
to limit state discretion in this area could be questioned if a state decides to enact a lower standard.
139
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4943-44.
140
7 U.S.C. § 6501(2); S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4954.
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ing,141 ensuring that consumers understand the meaning of “organic,”142 and explaining the import of the organic food label.143
Unfortunately, the Act is unlikely to demystify organic food labeling and production for the average consumer. Quite the contrary, the OFPA’s provisions in concert
with the NOSB recommendations are certain to exacerbate consumer confusion. Organic food shoppers will continue to face a perplexing jumble of organic seals, an
ambiguous definition of organic food, competing labeling claims (such as “natural”
and “residue-free”), and misleading advertising claims. Without focused federal action to illuminate these problem areas, consumers may end up knowing less about
organic foods than they did before the OFPA.
As previously noted, the OFPA allows states to affix organic seals to foods produced in accordance with the Act.144 In the hope of promoting home-grown foods,
states are likely to use their own seals to take advantage of this significant exception to
the Act’s purported uniform standards.145 In addition, some state organic plans allow
private companies to certify organic food production and attach their seals or insignias to the approved organic food.146 Consequently, organic food shoppers will continue to encounter the “confusing array of private and State labels” that Congress
cited as an impetus to passing OFPA.147
The OFPA’s vague definition of “organic” and the chemical litanies on the National List also are likely to keep consumers befuddled. Because the OFPA defines
“organic food” as food produced in accordance with the Act,148 the actual meaning of
the term will vary over time, depending on the contents of the National List. 149 Proposed National List substances are subject to publication in the Federal Register and
public comment,150 but most consumers do not read the Federal Register and may be
unable to keep up with National List developments. In the absence of a consumer
education campaign, the Act is unlikely to make consumers more knowledgeable about
organic foods than they were before Congress passed the OFPA.
In addition, organic food consumers who do learn about the approved synthetics
on the National List may be disillusioned.151 Former NOSB Chairman Michael Sligh
appreciated this potential for consumer dissatisfaction and concluded that the “honeymoon period is over for organics.”152 Congress was aware that consumers expect more
from organic foods. In fact, the legislators noted that “[m]ost consumers believe that
141
7 U.S.C. § 6501(1).
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4943-44.
143
See id. at 4944.
144
See 7 U.S.C. § 6507(h)(1).
145
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4949 (noting states’ desire to use labels so that
consumers can recognize home-grown products).
146
See id.
147
See id. at 4943.
148
7 U.S.C. § 6502(14).
149
Id. § 6517.
150
Id.
151
See, e.g., Clark, supra note 8, at 334. After stating that the “organic approach seeks to avoid risks by
using alternative practices and materials that have virtually no toxicity risks,” the author expresses his incredulity over the fact that NOSB would even consider synthetics. Id. at 334-40. But see 7 U.S.C. § 6504(1) (“[t]o be
sold or labeled as an organically produced agricultural product . . . . an agricultural product shall have been
produced and handled without the use of synthetic chemicals, except as otherwise provided in this chapter . . .
.) (emphasis added); id. §§ 6517(c)(1), 6518(l).
152
DeLollis, supra note 3, at B4.
142
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ORGANIC FOODS PRODUCTION ACT OF 1999
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absolutely no synthetic substances are used in organic production.”153 Nevertheless,
the OFPA basically ignores this public sentiment. Instead, the OFPA mandates a definition of “organic” that is contrary to what Congress acknowledges to be widely-held
public opinion. Whether or not Congress agrees with this public belief, the legislators
should have recognized that the OFPA could not reduce consumer confusion by defining “organic” to mean something different from what most people think it means.
NOSB’s three-tiered organic labeling hierarchy is liable to further cloud consumer perception because the fine distinctions between the tiers will not be apparent
to the average shopper. First-tier organic foods (at least ninety-five percent organic
ingredients) will be distinguishable because they bear the organic seal and may state
“100% organic” on the PDP, if applicable.154 Confusion, however, is likely to arise
concerning the distinction between the second-tier organic foods (foods “made with
organic ingredients” (at least fifty percent organic)) and third-tier organic foods, (foods
“made with organic ingredients” (at least fifty percent organic) and foods that “contain organic ingredients” (at least one percent organic)). In both cases, NOSB has
proposed to prohibit any percentage organic statement on the PDP, relying instead on
subtle stylistic differences to distinguish second-tier from third-tier organics.155 Nevertheless, even if consumers notice the labeling distinctions, they are unlikely to decipher the essential correlation between the labels and overall organic content.
If one of OFPA’s goals is to promote organic food, there seems to be no good
reason to draw a line between the second and third tiers. Under NOSB’s proposal, the
label for a second-tier food with fifty percent organics would read “made with organic
ingredients” on the PDP156 — a statement that will catch the organic food consumer’s
eye. Meanwhile, a third-tier food with forty-five percent organics will have no indication whatsoever of its organic content on the front of the package; only consumers
who fortuitously look at the ingredient panel will find this information. 157 Thus, contrary to congressional intent, the second-tier/third-tier distinction is liable to shroud
foods with significant organic content. Moreover, by banning the word “organic” from
the PDP of third-tier foods, the NOSB scheme may discourage producers from using
organic ingredients if they cannot reach the fifty percent threshold.158
Furthermore, the second-tier/third-tier distinction may mislead consumers. An
individual who picks up a box of cereal labeled “made with organic ingredients,” may
assume that all the ingredients are organic. If the consumer is not holding a first-tier
food in the other hand, he or she will have no means of label comparison. A simple,
prominent percentage statement could provide an easy answer to these concerns, but
153
S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4952. Congress’ perception is supported by a 1994
Health Focus Survey, which found that 75% of consumers believe that organic foods are grown without pesticides and herbicides. See Understanding Consumer Attitudes Key to Using Label Claims Effectively, Analysts
Say, FOOD LABELING NEWS, July 11, 1996, available in 1996 WL 8853898.
154
See NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATION, supra note 72, at 14.
155
See id.
156
Id. at 5.See NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATION ADDENDUM NUMBER 1, supra
note 72.
157
See NATIONAL ORGANIC STANDARDS BOARD, FINAL RECOMMENDATION ADDENDUM NUMBER 1, supra note 72.
158
Congress allowed for a multitiered labeling scheme because of a concern that a strict 95% threshold
could discourage food producers from using any organics if they could not meet the threshold. See S. REP. NO.
357, reprinted in 1990 U.S.C.C.A.N. at 4956. Applying the same logic here, one would expect that banning the
word organic from the PDP of foods that cannot meet the 50% threshold would discourage food producers from
using organics if they cannot meet this threshold.
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the NOSB did not recommend percentage labeling on the PDP.159 Therefore, NOSB’s
labeling hierarchy may confuse consumers and hamper organic sales by creating a
useless and potentially misleading distinction.
Another way that the OFPA threatens to exacerbate consumer confusion is its
failure to differentiate organic foods from other foods that vie for organic’s market
share. Consumers have long wondered about, and have often been misled by, labeling
claims such as “natural,” “ecologically grown,” “biodynamic,” and “sustainable.” 160
The OFPA represents the latest episode in a long history of federal reluctance to clarify
such claims.161 Neither FDA nor USDA ever has made a wholehearted effort to address these claims, possibly because limited agency resources make enforcement of
economic labeling issues a low priority.162 Because these labeling distinctions can
confuse food shoppers, however, they run contrary to congressional intent in passing
the OFPA. Due to the lack of clear federal standards, cost-intensive organic foods may
share the store shelf with lower-cost foods labeled “natural” or “sustainable.” These
lower-cost foods may sell for nearly the same price, without the consumer appreciating the significant difference between them.163 Unless federal regulators take steps to
educate consumers about what these claims mean, consumers will continue to be perplexed and organic food sales are likely to suffer.164
Finally, consumers may be misled by organic advertising claims that do not adhere to OFPA standards.165 Although all food labeling is regulated by FDA or USDA,
159
In 1992, NOSB originally proposed mandatory organic percentage labeling on the PDP for second-tier
foods. See Organic Standards Issues Pernicious and Plentiful, supra note 1, available in 1992 WL 2212231.
The Board subsequently proposed to make this labeling voluntary, see id., but in the end it recommended banning percentage labeling on the PDP for second-tier foods.
160
See Clark, supra note 8, at 328.
161
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4946-47, 4954 (noting that the OFPA will not
affect producer claims of “produced without pesticides” or “residue-free”). See also Lathrop, supra note 14, at
916-21 (discussing USDA regulation of “natural” claims); HUTT & MERRILL, supra note 88, at 59-60 (reviewing
USDA and FDA history of piecemeal regulation of “organic” and “natural” claims); Bones, supra note 20, at
405-06 n.3 (pointing out consumer confusion over the terms “natural” and “organic” and predicting that clarification should come in the OFPA regulations); Charles P. Mitchell, State Regulation and Federal Preemption of
Food Labeling, 45 FOOD DRUG COSM. L.J. 123, 125 (1990) (identifying FDA’s failure to address important
labeling issues, such as “natural” and “organic” claims).
162
See Mitchell, supra note 161, at 125 (reporting on FDA’s lack of resources to enforce “economic
issues”); telephone discussion with Kathy Leddy, supra note 11 (stating that economic marketing issues are not
the highest priority for USDA).
163
See Lathrop, supra note 14, at 921. The author examines this phenomenon as a “free rider” problem,
whereby the natural producer can boost its prices to meet the higher organic food price, which results from the
higher costs incurred in organic food production. See id. The organic producer loses when the natural producer
takes this free ride. See id. Aside from confusing consumers, this phenomenon also works to the detriment of
organic food sales, and is therefore contrary to the OFPA’s goals. Recent studies indicate that many retailers, in
fact, are marketing organic food alongside natural food in special “nutrition centers” or “natural food” sections.
See Boehning, supra note 6, at 43.
164
Congress recognized this problem in the area of residue-free claims and encouraged USDA and the
organic industry to organize a consumer education campaign to help shoppers differentiate organic claims from
residue-free claims. See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4954. Nonetheless, such a campaign will be limited in its efficacy unless it addresses a wider range of competing claims. The residue-free
education campaign should inform consumers about what they are getting in organic foods. Congress has recognized that some consumers expect organic foods to be residue-free. See id. at 4954. Nevertheless, Congress’
approach to this issue mirrors its approach to the definition of “organic”: it disregards widely-held public opinion
and imposes a new definition on the uninformed public. A consumer education campaign could mitigate the
damages from this approach by informing consumers that organic foods may contain limited chemical residue
levels. See infra part VI.
165
In fact, some consumer groups have called for FDA regulation of food advertising claims. See Bradley,
supra note 88, at 667-68.
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FTC has long regulated food advertising.166 FTC’s greater tolerance for food claims in
advertising has led to the use of some promotional statements that FDA would prohibit in food labeling.167 Thus, under the current regulatory scheme, a food producer
that cannot meet the OFPA standards for labeling may be able to make misleading
advertising statements, such as “produced by organic farming,” without FTC scrutiny.
Unfortunately, the OFPA does little to bridge this regulatory gap, which seems odd
considering that one goal of the Act is “to establish national standards governing the
marketing of [organic foods].”168
C. OFPA Goals and the Continued Balkanization of Federal Food
Law
For reasons not clear in the legislative history or the OFPA itself, Congress granted
USDA complete authority over organic food labeling.169 Because many organic foods
fall within the FDCA food definition,170 however, FDA retains jurisdiction over all
other labeling aspects of these foods.171 The inefficiency of this system is obvious. For
a bag of organic celery, FDA would review the label to ensure that its requirements are
met, including those relating to nutrition information, manufacturer data, quantity
and weight, food additives, pesticide residues, artificial flavoring and coloring, chemical
preservatives, and prominence of label information.172 Meanwhile, USDA would review the same bag of celery to ensure that it complies with OFPA standards. This
overlap is unnecessary and wasteful. Moreover, it creates potential conflict between
OFPA and FDA labeling requirements.173
One area of potential inconsistency concerns FDA’s approach to safety, quality,
and production labeling claims. Although Congress insisted that “organic” was simply a production claim,174 closer examination reveals that this assertion misrepresents
166
Federal Trade Commission Act, ch. 311, 38 Stat. 717, 719-20 (1914) (as added Mar. 21, 1938, 52 Stat.
111, 114-15 (1938)) (codified as amended at 15 U.S.C. §§ 45(a)(1), 52 (1994)). These statutory provisions
prohibit deceptive acts or practices in food advertising. See id. FDA and FTC have signed a Memorandum of
Understanding to clarify FTC’s authority over advertising. See Bradley, supra note 88, at 650 (discussing relative FDA and FTC authority over food advertising). See also 21 U.S.C. § 378 (requiring FDA to notify FTC
before taking any action against foods that may be mislabeled due to their advertising, and mandating that FDA
coordinate actions with FTC to avoid unnecessary duplication).
167
See Bradley, supra note 88, at 650-51 (“. . . FTC’s policies reflect the belief that health claims in
advertising can benefit consumers, as long as the information conveyed is substantiated, truthful, and not deceptive”). The author explains that FTC sees food labeling as different from advertising for three reasons: 1) labeling claims are made in isolation, not in the context of an advertisement; 2) advertisements cannot carry the same
detailed information as labels and 3) people expect advertisements “to spark their interest.” See id. at 651 Interestingly enough, FTC was the first federal agency to take significant steps in restricting organic and natural
claims. See HUTT & MERRILL, supra note 88, at 59. After proposing to prohibit these claims in 1974, 39 Fed. Reg.
39,842 (Nov. 11, 1974), FTC later abandoned this policy. 48 Fed. Reg. 23,270 ( May 24, 1983).
168
7 U.S.C. § 6501(1) (emphasis added). See also infra note 189.
169
See 7 U.S.C. § 6502(19); S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4944.
170
21 U.S.C. § 321(f).
171
See Lathrop, supra note 14, at 915.
172
See 21 U.S.C. § 343.
173
See Lathrop, supra note 14, at 887.
174
See, e.g., S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4946-47. If so, there is precedent for FDA
regulating production labeling claims. See, e.g., Food Drug Cosm. L. Rep. (CCH) ¶ 50,133, ¶ 50,475 (describing FDA regulation of “homemade” manufacturing claims). See also infra part V.C. (discussing FDA action to
regulate produced-without-rBST claims).
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the issue.175 If Congress truly meant for “organic” to be a mere production claim, then
setting a maximum allowable residue level for organics would have been superfluous.
In other words, as long as an organic producer followed the dictates of the OFPA, the
simple fact that its crops were contaminated inadvertently would not matter, because
the food still would be produced organically. Congress, however, explained that consumers need assurance that they were getting the product for which they paid;176 thus,
Congress tacitly accepted that consumers consider “organic” to be more than a production claim. Consumers purchase organic foods for reasons of nutrition, safety, quality,
or environmentally-sound production.177 Therefore, organic claims could fall into any
of these categories, and FDA could opt to restrict OFPA organic labeling claims for
misleading consumers or concealing material facts in these areas.
FDA’s recent activity with regard to “made without rBST” claims in milk production provides insight on how FDA might regulate “organic” as a quality, safety, or
production claim. In 1994, FDA released on interim policy guidance for the labeling
of milk and milk products from cows that received no treatment with recombinant
bovine somatotropin (rBST), a controversial growth hormone.178 FDA found no significant difference between milk from cows treated with rBST and milk from untreated cows.179 Consequently, the agency decided that it had no authority to require
the affirmative labeling of milk from rBST-treated cows.180 FDA, however, stated that
milk from nontreated cows could contain labels informing consumers that the milk
was from non-treated cows.181 FDA also advised that unqualified statements of “rBST
free” could be misleading to consumers. Therefore, the agency recommended that
producers provide a proper context, such as conveying the producer’s reasons — other
175
NOSB critic John Bell Clark expressed his astonishment that, at the Board’s first meeting, Assistant
Secretary of Agriculture Joann Smith told the members that the OFPA is not a food safety law and, thus, it should
not make conventional food “look bad” by characterizing organic food as safer than conventional food. Clark,
supra note 8, at 331. Although the author elides that Congress repeatedly stated this point, see, e.g., S. REP. NO.
357, reprinted in 1990 U.S.C.C.A.N. at 4947 (“[t]his legislation does not attempt to make scientific judgments
about whether organically produced food is more healthful, nutritious, or flavorful than conventionally produced food”), he does raise the important issue addressed in this section, such as what type of claim is “organic”?
See infra part V.C.
176
See S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4954.
177
See, e.g., Understanding Consumer Attitudes Key to Using Label Claims Effectively, Analysts Say,
supra note 153, available in 1996 WL 8853898 (citing a 1994 HealthFocus survey finding that 56% of consumers believe organic foods are more nutritious, 47% think they are fresher, and 36% claim they taste better);
Survey Finds “Staggering” Selection of Organic Grocery Items, supra note 7, available in 1994 WL 2550497
(noting perception of organic as “safe food”); Jim Gould, Keeping Our Children Safe, GOOD HOUSEKEEPING, Oct.
1, 1996, at 145 (recommending organic foods as a safe way to avoid chemical residues); Murphy, supra note 2,
at A37 (citing a study that found that 68% of consumers perceived organic food as safer than conventional food,
while 71% of consumers were “very interested” in ecologically-sound foods); Motavelli, supra note 21, at 46
(discussing the ecological draw of organic products); Susan M. Kleiner, Should You Opt For Organic?, THE
PHYSICIAN AND SPORTSMEDICINE, Dec. 1, 1995, at 15 (advising that, while organic foods may be no safer or more
nutritious, they are better for the environment). Some consumers buy organic food because it is easier on the
environment. Although it is not clear what authority FDA would have over environmental claims, the issue of
“green marketing” has aroused much attention. See, e.g., E. Howard Barnett, Green With Envy: The FTC, the
EPA, the States, and the Regulation of Environmental Marketing, 1 ENVTL. LAWYER 491 (1995). FTC already
regulates some environmental marketing claims. See Guides for the Use of Environmental Marketing Claims,
61 Fed. Reg. 53,311 (Oct. 11, 1996).
178
Interim Guidance on the Voluntary Labeling of Milk and Milk Products From Cows That Have Not
Been Treated With Recombinant Bovine Somatotropin, 59 Fed. Reg. 6279 (Feb. 10, 1994).
179
See id. at 6280.
180
See id.
181
See id.
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than safety or quality — for choosing not to use rBST, or including a statement that
there is no significant difference between milk from treated and nontreated cows.182
Following the rBST precedent, FDA could insist that organic producers provide
context for their labeling claims so as not to mislead consumers as to the quality or
safety of their product. For example, because there is no evidence that organic foods
are compositionally different from conventional foods,183 FDA could require organic
producers to include a statement that FDA does not recognize organic foods as safer
or of higher quality than conventional foods. Congress must not have anticipated the
potential for such a result, which, by requiring a statement that organic food is no
better or safer than conventional food, could confuse consumers who are buying organic foods for those very reasons. As a result, organic sales could decline, contrary to
the OFPA goal of promoting organic foods.
VI. RECOMMENDATIONS
Although, this article has focused thus far on the negative aspects of the OFPA,
the statute has many positive characteristics as well. Most notably, the OFPA is preferable to no national organic labeling scheme. At the very least, the Act replaces a
patchwork of state regulation (including no organic regulation in over half of the
states) with a baseline national standard. Moreover, although the Act’s provisions
raise some vexing problems, these problems are not all intractable. With proper implementation by USDA and the use of some innovation, the OFPA might achieve the
goals set for it by Congress. The following recommendations suggest a number of
steps that USDA can take to promote a meaningful national organic program.184
A. Creating Consistency Among the States
The OFPA’s allowance for additional state restrictions on organic food labeling is
potentially the most daunting obstacle to the goal of national uniformity. Although
Congress included a strong statement in favor of national uniformity in the Act,185 the
182
See id. FDA’s position has received approval from at least one federal court. See Stauber v. Shalala, 895
F. Supp. 1178 (W.D. Wis. 1995) (upholding FDA policy as reasonable). When Vermont took FDA’s advice in
the converse and passed a law requiring positive labeling of rBST use, VT. STAT. ANN. tit. 6, § 2754 (1996), a
Vermont dairy association sought a preliminary injunction to prevent enforcement of the law. International Dairy
Foods Ass’n v. Amestoy, 898 F. Supp. 246 (D. Vt. 1995). The court rejected the Association’s constitutional
arguments, and denied the motion. Id. at 247-48. In dismissing a Commerce Clause argument, the court noted
that Vermont had provided rBST information based on the consumers’ “right to know,” which, the court concluded is a legitimate state purpose. Id. at 249, 251-52.
183
See Kleiner, supra note 177, at 15; Liz Applegate, Going Organic, RUNNERS WORLD, Aug. 1, 1996, at
30 (noting that it still is unresolved whether organic food is more nutritious); Centner & Lathrop, supra note 94,
at 41 (“there are not means to document that organic food is compositionally different from conventionally
produced food. Therefore, any claims on organic food labels must not assert that the food is somehow different in
its quality . . .”). But see Applegate, supra, at 30 (reporting on a Chicago-area study that found consistently
higher levels of minerals and other nutrients in organic food); Organic Food Proven More Nutritious!, ORGANIC
GARDENING, Sept. 19, 1996, at 18 (citing a Swiss study showing that manure use can raise crop levels of vitamin
B-12). With regard to nutrition labeling, FDA has long permitted implicit health claims in the form of truthful
descriptions of food composition. See Peter Barton Hutt, Health Claims for Foods — An American Perspective, in HUTT & MERRILL, supra note 88, at 183.
184
Many of the problems noted above existed before Congress passed the OFPA, and may always exist in
one form or another. Federal-state relations, interagency squabbling, and consumer confusion over any food
labeling solution are all examples of enduring difficulties. Moreover, Congress sets overly ambitious goals for
much legislation and thus the OFPA’s failure to meet its own goals is not unique.
185
7 U.S.C. § 6501.
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lawmakers simultaneously contradicted this goal by allowing states to exercise significant discretion over organic food labeling.186 These mixed signals demonstrate
Congress’ ambivalence, or perhaps insincerity, about the importance of national uniformity.187
It seems that USDA can do little to avoid this conundrum. USDA could attempt
to leverage its review power over state plans, rejecting state requirements that are
inconsistent with the federal plan on the ground that they are contrary to OFPA goals.
States, however, are likely to challenge this approach in the courts, where judges have
been extremely reluctant to curb traditional state police power without an exceedingly
clear federal intent to preempt.188 Unfortunately for USDA the OFPA lacks such an
exceedingly clear intent.189 Consequently, state challenges to USDA preemptive action would likely prevail.
Because neither the OFPA regulations nor litigation seems likely to promote uniformity, Congress should consider the alternatives available. If Congress truly wants
to promote organic food uniformity, it should reevaluate the entire scheme of federal
food regulation. Current federal law gives USDA preemption authority in food labeling; in contrast, FDA’s preemptive authority is markedly weaker and does not extend
to the important category of deceptive food labeling.190 As one proponent of preemp-
186
Id. § 6507(a)-(b).
One of the normative questions not addressed by this article, but important to the debate over federal
food law, is whether national standards are necessary to promote uniformity. Although a number of commentators stress the need for such standards, see, e.g., Lathrop, supra note 14, at 922-25; Charles D. Nyberg, The
Need for Uniformity in Food Labeling, 40 FOOD DRUG COSM. L.J. 229, 235-36 (1985), proponents of state
control emphasize the important role that states can play. See, e.g., Bradley, supra note 88, at 649; Mitchell,
supra note 161, at 140-01; Bruce A. Silverglade, Preemption — The Consumer Viewpoint, 45 FOOD DRUG
COSM. L.J. 143, 144-45 (1990).
188
See Mitchell, supra note 161, at 129-30 (citing Hillsborough County v. Automated Medical Labs, 471
U.S. 707, 712 (1985), and the need for a “clear and manifest purpose of Congress”).
189
See Lathrop, supra note 14, at 898-902 (examining five theories of preemption in Hillsborough and
concluding that the OFPA does not meet four of these theories, and may not meet the fifth). The one theory of
preemption left open, according to Lathrop, is known as specific preemption. See id. at 900-01; Mitchell, supra
note 161, at 131. Specific preemption arises when the federal regulation makes it physically impossible for the
subject to comply with both the federal and the state standards. See Lathrop, supra note 14, at 900. It seems
unlikely that OFPA regulations will raise any physical impossibility issues and, thus, the OFPA is not likely to
reach this theory of preemption. See Mitchell, supra note 161, at 131 (noting that “impossibility only arises in
particular instances when federal and state laws require different labeling language for the same food, that is, one
prohibiting what the other requires”). One theory of preemption rejected by Lathrop, however, may still be open
to USDA: where a state law is an obstacle to accomplishing federal objectives. See Lathrop, supra note 14, at
901-02. If USDA wanted to assert preemptive authority over state organic standards in litigation, it could argue
that differing state requirements undercut the Act’s explicit uniformity goal. FDA has tried to make a similar
argument in court, but has failed because the FDCA does not contain a clear goal of uniformity, although such a
goal was assumed. See Mitchell, supra note 161, at 138-40. In contrast, the OFPA’s explicit uniformity goal
seems like a promising hook for federal preemption. The sincerity of the uniformity goal, however, is weakened
both by the Act’s express language supporting additional state restrictions and by the absence of a strong preemptive statement in the Act. In addition, as discussed earlier, the criteria that USDA must apply in evaluating state
plans, if taken literally, would require USDA to reject nearly any state requirement because additional requirements would be per se contrary to furthering the uniformity goal. Based on these factors, it is likely that a court
would find that the OFPA does not provide USDA with preemptive authority over organic food labeling.
190
21 U.S.C. § 343-1(a)(1)-(5). See also Craig Jordan, Preemption and Uniform Enforcement of Food
Marketing Regulations, 49 FOOD & DRUG L.J. 401, 402 (1994) (noting the conspicuous omission from FDCA
section 403A, 21 U.S.C. section 343-1 of FDA’s section 403 authority to regulate false and misleading labeling;
the result is that FDA has no authority to preempt state law in this area). At the same time, Congress has created
preemptive authority for FDCA standards in the areas of nutrition labeling, nutrient content, health claims,
standards of identity, and various other misbranding requirements. See id. at 403.
187
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tion notes, however, “food is food.”191 Uniformity may be best served if federal control
over labeling does not vary between agencies, types of food, or nutrition and organic
claims.192 Congress has considered harmonizing federal food preemption in the past,193
and may consider doing so again, although any imminent action seems unlikely in
this age of opposition to federal control.
The final, and most likely, solution to the uniformity dilemma would be to encourage state-federal cooperation in harmonizing organic labeling standards. Although
this recommendation diverges from the congressional goal of promoting uniformity
through a national standard, the preceding arguments demonstrate that the OFPA is
not likely to provide uniformity on its own. Using the OFPA as a floor, USDA should
work with states and the organic industry to coordinate organic standards. States are
likely to adopt additional restrictions, leading to the same uniformity problems that
prompted Congress to pass the OFPA. USDA, however, can work to harmonize state
restrictions by encouraging interstate cooperation laying out standards for the types of
state restrictions that will qualify as “consistent” and “reasonable.” These USDA standards would provide the surrogate of a national organic baseline, and food producers
could adjust their requirements accordingly.
B. Minimizing Consumer Confusion
Of the three goals set out in the OFPA,194 USDA has the highest potential for
success in reducing consumer confusion. The strong point of the OFPA is that the Act
provides a baseline for national organic standards and the definition of “organic,”
even if this baseline is likely to shift over state boundaries and time. To lessen these
impediments to consumer understanding, USDA should embark on a consumer education campaign that seeks to inform organic food shoppers about the federal definition of “organic” and the contents of the National List. This education campaign
should tell consumers that OFPA organic foods may contain chemical residues and
synthetic inputs, and USDA should consider whether these data should appear on the
food labels themselves.195 The Secretary also can reduce consumer anxiety over organic seals by making certain that state seals do not infer higher quality than out-ofstate OFPA foods. If the primary role of state seals is to promote home-grown foods,
USDA should consider restricting state seals to simply read “made in state X.” Such a
seal would be clear to consumers without inferring that home-state organic goods are
more organic than out-of-state goods.
The goal of consistent consumer information also will be promoted by prominent
labeling of organic percentages. USDA should accept the NOSB recommendation for
first-tier organic labeling, but eliminate the distinction between the second and third
tiers. In its place, USDA should require that all OFPA foods list their organic percent-
191
Nyberg, supra note 187, at 233.
See id.; Lathrop, supra note 14, at 922-30.
193
See Lathrop, supra note 14, at 904-05 (discussing Consumer Food Act of 1975, S. 641, 94th Cong., 1st
Sess. (1975), which would have preempted states from issuing food labeling regulations that were different from
or in addition to federal standards); Nyberg, supra note 187, at 235-36 (noting that the Consumer Food Act of
1975, while better than no preemption, would not have provided enough uniformity).
194
7 U.S.C. § 6501.
195
See Clark, supra note 8, at 335 (recommending that USDA ensure that food labels inform consumers
when a food is grown with synthetics or other nonorganic inputs).
192
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ages on the primary display panel.196 Clear percentage labeling will provide shoppers
with full information about organic food content, while also erasing the baffling distinction between “made with” and “contains.” Moreover, percentage labeling on the
PDP, rather than the ingredient panel, will catch the consumer’s eye and promote
organic food sales. Finally, prominent percentage labeling may encourage food manufacturers to use more organic ingredients to edge out competing products.197
Federal agencies should act in concert to reduce consumer confusion that results
from misleading claims in labeling and advertising. USDA and FDA should cooperate to establish firm standards for food claims such as “natural,” “ecologically produced,” “residue free,” and “sustainable” so that consumers can differentiate organic
food from these competing foods. Likewise, USDA and FDA should work with FTC
to ensure that food advertisers do not confuse these labeling claims with organic claims,
and to prevent underhanded producers from advertising their non-OFPA foods as
organic. Although FTC traditionally has been more tolerant of food claims in advertising, USDA could make a strong case for strict advertising standards based on congressional intent to differentiate “residue-free” advertising claims from organic claims
and to establish national standards for organic food marketing.198
C. Promoting Labeling Consistency at the Federal Level
The goal of a uniform national standard for organic foods may be jeopardized by
the nonuniform way that the federal government regulates food labeling. Rather than
providing clarity, the OFPA perpetuates a labeling scheme that Vermont Senator Patrick
Leahy compared to a “Tower of Babel.”199 Under the proposed OFPA labeling scheme,
USDA would regulate organic claims on food labels that FDA already regulates for
adequate nutrition data, packaging statements, weight, origin, and a variety of additional information. Moreover, FDA is authorized to enforce standards for a wide range
of labeling information and to prohibit misleading claims or concealment of material
information on organic food labels. This bifurcated labeling authority under the OFPA
is not only inefficient, but it promotes unnecessary agency overlap and potential consumer confusion over the safety and quality of organic food.
Easy solutions to this problem are not obvious. At the least, USDA and FDA
should cooperate to ensure that any FDA enforcement in organic food labeling is
consistent with the OFPA. A memorandum of understanding between the agencies
could clarify this issue and ensure organic producers that they will not be subject to
196
See Survey Finds “Staggering” Selection of Organic Grocery Items, supra note 7, available in 1994
WL 2550497 (citing the group Pesticide Watch, which recommends that manufacturers “clearly and boldly state
on the front of the label if the product contains organic ingredients or is 100% organic”).
197
See Organic Standards Issues Pernicious and Plentiful, supra note 1, available in 1992 WL 2212231
(recounting position of some NOSB members that organic percentage labeling would promote competition among
producers).
198
One goal of the OFPA is “to establish national standards governing the marketing of [organic food].” 7
U.S.C. § 6501(1) (emphasis added). This language could represent congressional intent that FTC tighten its
advertising standards to meet the OFPA labeling requirements. In addition, the legislative history provides further evidence of congressional intent to restrict organic food advertising. In its discussion of residue testing,
Congress stated that “[p]esticide-free or residue-free food should not be advertised as equivalent of organically
produced food.” S. REP. NO. 357, reprinted in 1990 U.S.C.C.A.N. at 4954 (emphasis added). In both cases,
Congress could have limited its statements to labeling, as it did elsewhere in the Act and the legislative history,
but it referred instead to marketing and advertising.
199
See Lathrop, supra note 14, at 895 (citing Traupman, Congress Eyes National Organic Law, NEW
FARM, Feb. 1990, at 40.).
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different federal standards. To eliminate overlap in labeling review, USDA could transfer
OFPA labeling authority for FDCA foods to FDA.200 Such a move would allow both
USDA and FDA to bring their accumulated expertise to bear in their traditional spheres
of food regulation. More comprehensive solutions will have to wait for further congressional action or executive branch reorganization.201
VII. CONCLUSION
The OFPA sets ambitious goals for the national organic food scheme that it creates. The Act, however, laboring under the weight of its own provisions, seems doomed
to fail to meet these goals. Organic food producers are likely to face standards that
differ from one jurisdiction to another. Consumers will continue to face a baffling
array of organic food labels, with little information about what those labels actually
mean. Varying state organic standards will continue to hamper interstate sales of
organic foods. These concerns should sound familiar, especially to Congress, because
they are the very concerns that prompted the OFPA’s passage in the first place.
Getting the national organic program on track will require a focused effort by
USDA, in the consult of NOSB. Coordination of federal-state regulation, an ambitious consumer education campaign, and resolution of agency responsibilities at the
federal level can all contribute to the OFPA’s success. Absent such measures, however,
the OFPA program is likely to fail in the face of a burgeoning multibillion dollar
national and international trade in organic food.202 Consequently, Congress may find
itself debating a new law to regulate organic food as the nation enters the twenty-first
century.
200
See Lathrop, supra note 14, at 915 (suggesting that USDA give FDA “a significant role in the enforcement of OFPA provisions”).
201
The President has authority to re-allocate functions among the federal agencies for the purposes of
increasing efficiency, eliminating duplication of effort, and promoting better execution of the laws. 5 U.S.C. §§
901-905.
202
See Centner & Lathrop, supra note 93, at 32-33 (explaining that the OFPA may not promote international trade in organic food because the Act predates the North American Free Trade Agreement and the recent
General Agreement on Tarrifs and Trade/World Trade Organization agreements); Murphy, supra note 2, at A37
(discussing increased demand for U.S. organic exports, primarily from Japan and Europe; experts predict that
this market, which totaled $715,000,000 in 1995, will double by the year 2002).