Amy M. Beiersdorfer

November 22, 2000

For most Americans, Thanksgiving is an exciting time full of food, football, holiday shopping, and general overindulgence.  We look forward to loading our plates with turkey, mashed potatoes, stuffing, corn, cranberry sauce, and candied yams.  After dinner, we drag ourselves to the couch and watch football or nap until rested enough to crawl to the dessert table for slices of pumpkin, pecan, and apple pie.  In the midst of the indulgence of Thanksgiving, most of us truly feel thankful to be able to share such a bountiful meal with family and friends.  Ironically, relatively few Americans know or care where the feast originated or how it was produced.

The rising demand for organic food suggests that an increasing number of people are becoming aware of how the food they eat is produced and may be dissatisfied with modern agricultural practices.  Organic agriculture has been defined as "an alternative agricultural production system that eschews the use of chemical pesticides and fertilizers.  It is a 'systems approach to farming that is more responsive to natural cycles and biological interactions than conventional [chemical intensive] farming methods."[1]  Organic food sales have increased by approximately 20% each year from 1990 through 1996.[2]  In 1997, total organic food sales in the United States reached an estimated $4.0 to $4.2 billion.[3]  While most consumers choose to purchase organic food for health reasons, the demand for organically grown food is also due to increased awareness of the environmental consequences of modern agriculture.[4]

The agriculture industry is the "'largest single nonpoint source' of surface water pollution."[5]  In a 1988 report, the U.S. Environmental Protection Agency (EPA) confirmed that normal agricultural use has resulted in the presence of forty-six pesticides in the groundwater of twenty-six states.[6]  Despite agriculture's impact on both water quality and human health, no federal environmental statutes are designed to adequately address nonpoint sources of pollution.[7]  Thus, virtually the only recourse available to control the hazards of agricultural nonpoint source pollution is our power as consumers to protest the use of chemical pesticides and fertilizers by purchasing organically grown food.

Making informed decisions about which organic foods to purchase is more complicated than many consumers might think.  To date, forty-nine state and private organizations have established various certification programs and standards.[8]  In other words, what might be considered organic by one certifying organization might not be considered organic by another.  The inconsistent requirements for certification among the states have "created problems for farmers and handlers of organic products, particularly if they want to sell their products in multiple States with different standards.  Lack of a nationwide standard has also created confusion for consumers, who may be uncertain over what it really means when a food product is called 'organic.'"[9]  To resolve the confusion, Congress passed the Organic Foods Production Act (OFPA) in 1990.[10]

The purpose of the OFPA is threefold.  First, the OFPA is an effort by Congress to establish national standards governing the marketing of certain agricultural products as organically produced.[11]  The second purpose is to assure consumers that organically produced products meet a consistent standard.[12]  Finally, the OFPA is an attempt to facilitate commerce in fresh as well as processed organically produced food.[13]  The U.S. Department of Agriculture (USDA) is required to issue a regulation to implement the Act.[14]  A decade after enacting the OFPA, the USDA is finally close to issuing the regulation.

After two prior notice and comment periods, the latest proposed rule was published in the Federal Register on March 13, 2000 and comments were due by June 12, 2000.[15]  The Agricultural Marketing Service of the USDA expects to publish the final rule by the end of December, 2000.[16]  The proposed rule includes provisions regarding a wide variety of issues such as labeling, livestock production, handling and treatment, and operations exempt or excluded from certification requirements.[17]  The proposed rule is expansive and any consumer concerned with the quality and production consequences of the food they purchase should read it in order to truly understand what agricultural practices are being supported through the purchase of food labeled as "organic."

For example, many consumers may not know that, under the current language of the proposed rule, organic foods need not be pesticide free.  Farmers are permitted to use natural pesticides and can even use certain synthetic chemical pesticides if specifically allowed by the National Organic Standards Board and approved by the USDA Secretary.[18]  Such information would be important to the potentially large number of organic food consumers who incorrectly assume that organic means pesticide-free.

Individuals who make organic purchases based on animal welfare issues should also carefully read the proposed rule.  The Agricultural Marketing Service clearly acknowledged consumer belief that "access to the outdoors is a fundamental tenet of organic livestock production."[19]  The proposed rule therefore includes provisions regarding animal confinement.[20]  However, the proposed rule also makes several exceptions to the general proposition that "any livestock or edible livestock product to be sold, labeled, or represented as organic must be maintained under continuous organic management from birth or hatching."[21]  One such exception is that "[m]ilk or milk products must be from animals that have been under continuous organic management beginning no later than 1 year prior to the production of such products."[22]  The same is true for nonedible livestock products such as wool.[23]  Thus, because of these exceptions, livestock need only be kept in accordance with the confinement standards for a year prior to product production.  These are just two of the many examples illustrating that, without carefully reading the final rule, many consumers will likely make false assumptions regarding the way in which organic food is produced.

One cannot fully appreciate the value of a meal without knowing the effort that goes into producing the food from which the meal was created.  Not only does this effort include the manual labor exercised, but also the manner in which the food was grown or raised, any chemicals used in its production, and the environmental consequences of its production.  When the final organic standards rule is issued, consumers of organic food will hopefully read it to know exactly what they are getting when purchasing food labeled as "organic."  While we should all certainly be thankful for the food available to us, this should not prevent us from questioning the consequences of modern food production and making an effort as consumers to choose the means of production that is the most healthful and environmentally sound.  Then, at Thanksgiving, we can truly appreciate the meal for which we give thanks.

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[1] L. Alenna Bolin, An Ounce of Prevention: The Need for Source Reduction in Agriculture, 8 PACE ENVTL. L. REV. 63, 80 (1990-91), (quoting NATIONAL RESEARCH COUNCIL, ALTERNATIVE AGRICULTURE 135 (1989)).

[2] T.L. Dobbs et al., Lessons learned from the Upper Midwest Organic Marketing Project, 15 AM. J. ALT. AGRIC. 119, 123 (2000).

[3] Id.

[4] Fred Kuchler et al., Do health benefits explain the price premiums for organic foods?, 15 AM. J. ALT. AGRIC. 9 (2000).

[5] Bolin supra n.1 at 73 (quoting NATIONAL RESEARCH COUNCIL, ALTERNATIVE AGRICULTURE 89 (1989)).

[6] Id. at 74, citing Report Says Regular Use of Pesticides Result in More Contamination Than Believed, 19 ENV'T REP. (BNA) 1755-56 (Dec. 23, 1988).

[7] Id. at 76-79.

[8] National Organic Program, 65 Fed. Reg. 13,512, 13,513 (2000) (proposed Mar. 13, 2000) (to be codified at 7 C.F.R. pt. 205).

[9] Id.

[10] See Organic Foods Production Act of 1990, 7 U.S.C. §6501 (1994).

[11] Id.

[12] Id.

[13] Id.

[14] Id. §6521.

[15] National Organic Program, 65 Fed. Reg. at 13,512.

[16] Id.

[17] See National Organic Program, 65 Fed. Reg. 13,608-32.

[18] See id. at 13,514

[19] Id. at 13,547.

[20] See Id. at 13,616.

[21] Id. at 13,615.

[22] Id.

[23] Id.