9th Circ. Says Hydroponic Food Can Use ‘Organic’ Labels (subscription to Law360 required)
- As previously covered on this blog, the U.S. District Court for the Northern District of California ruled on March 18, 2021 against a group of traditional organic farmers and the Center for Food Safety (CFS) that challenged the U.S. Department of Agriculture’s (USDA) denial of their 2019 petition that asked USDA to bar organic certification of hydroponically grown crops on the basis that crops grown without soil cannot comply with the essential requirement of the Organic Foods Production Act (OFPA) that crop production farm plans “contain provisions designed to foster soil fertility.” Accepting USDA’s “equally persuasive” interpretation of the OFPA to mean that if crops are grown in soil, their producers must take measures to preserve that soil’s “fertility,” the court found that USDA did not err in deciding that the OFPA does not prohibit hydroponic systems from qualifying for the National Organic Program (NOP).
- On September 22, 2022, the Ninth Circuit affirmed the lower court ruling in favor of USDA’s policy of permitting hydroponically grown crops to qualify for the NOP, finding that the OFPA does not clearly require USDA to issue the requested rule that would bar such crops from organic certification. The court recognized plaintiff appellants argument that the OFPA requires that organic products “be produced and handled in compliance with an organic plan,” but rejected the contention that hydroponics are excluded from the NOP based on the impossibility of hydroponics complying with the OFPA’s requirement that crop production farm plans “contain provisions designed to foster soil fertility.” Instead, the court found USDA’s interpretation that the organic plan provision at issue applies only to crops grown in soil to be consistent with another section of the OFPA that provides “other production and handling practices…shall be permitted unless it is determined that such practice would be inconsistent with the applicable organic certification program.”
- Interestingly, the plaintiffs did not discuss distinctions in the OFPA between a “plan” and a “practice.” The OFPA requires that organic products “be produced and handled in compliance with an organic plan,” which by definition must include “written plans concerning all aspects of agricultural production or handling described in this chapter including crop rotation and other practices as required under this chapter.” The contested provision on soil fertility is found in a section of the OFPA titled, “Organic plan,” and describes mandatory “practices” for a crop production plan that assumes crops are grown in soil. In this regard, while not prohibiting other nonconflicting “practices,” the OFPA does not contain provisions for an “organic plan” that is applicable to hydroponics.