Hydroponics and the Organic Label (Part Three)

By Glenn Kern, CFSA Organic Policy Coordinator

The Debate

Once again—neither the Organic Foods Production Act nor the USDA Organic Regulations expressly prohibit or allow certification of hydroponics. Without a legislative amendment or a federal court specifying otherwise, it is the job of the National Organic Program (NOP) to make a determination about how the existing law should be interpreted with respect to hydroponic production systems. Unless and until new regulations are finalized, the NOP and its accredited certifiers can continue to stand on the OFPA provision permitting “other production and handling practices…not prohibited or otherwise restricted…unless it is determined that such practice[s] would be inconsistent with the applicable organic certification program.” Since the beginning of the Organic program, the NOP’s interpretation of the law has been to allow hydroponic systems as long as an accredited certifier determines that the system complies with OFPA and all applicable Organic regulations. The result has been undesirable regulatory inconsistency.

One option available to the NOP is to issue “administrative guidance”—non-binding advice from an agency about how best to comply with a federal law. Such guidance could be written to assist certifiers in deciding whether a hydroponic system is in compliance. However, the NOP has on multiple occasions indicated to the NOSB that a formal rulemaking is likely required in order to adequately address the regulatory inconsistency of hydroponics certification. To that end, the NOP has asked the NOSB to provide a comprehensive recommendation on hydroponics that could be used as the basis for new regulations. What this recommendation should be is the subject of much debate among Organic stakeholders and the members of the NOSB.

In a nutshell, opponents of allowing hydroponics argue that several provisions of OFPA and the Organic regulations already impliedly prohibit hydroponics or, at the least, counsel against its inclusion under the Organic label. In particular, opponents point to those provisions pertaining to the management of soil and nutrients, arguing that hydroponic and other “soil-less” systems are inherently incapable of complying with these requirements and should therefore be prohibited. Many opponents also argue that allowing “soil-less” systems would be contrary to the spirit and intention of the Organic Foods Production Act, which was itself the product of an agricultural movement that stressed improving the ecological health of soil as a means of producing environmentally sustainable, healthy food.

NOP’s interpretation of the law has been to allow hydroponic systems as long as an accredited certifier determines that the system complies with OFPA and all applicable Organic regulations. The result has been undesirable regulatory inconsistency.

In response, advocates of including hydroponics under the Organic label often argue that there are multiple possible interpretations of the relevant provisions of OFPA and the USDA Organic regulations, and that depending on which interpretation one chooses, the requirements pertaining to soil and nutrient management could be viewed as either inapplicable to “soil-less” systems or as capable of being achieved by at least some hydroponic models. Some advocates argue that in certain hydroponic systems, the functional equivalency of “soil ecology” is created through the cycling of resources and interactions between crops and microorganisms. Proponents of hydroponics also assert that properly designed hydroponic operations conserve natural resources and minimize negative environmental impacts in a way that is consistent with the spirit and intention of OFPA.

It must be stressed that neither of these brief synopses adequately expresses the full range or nuance of opinions about whether hydroponics should be eligible for Organic certification. To learn more about the various positions taken by stakeholders on this issue, I recommend starting with the 2016 Hydroponic and Aquaponic Task Force Report, mentioned in Part 2 and available here.

Just in case you’re interested, what follows is a list of key provisions of the USDA Organic regulations and OFPA that underpin the debate about whether the NOP should prohibit hydroponics. If you want to read the text, just click on the statute citation.

(a) USDA Organic Regulations

(i) 7 CFR §205.200, General

(ii) 7 CFR §205.203, Soil fertility and crop nutrient management practice standard

(iii) 7 CFR §205.205, Crop rotation practice standard

(b) Organic Food and Production Act (7 U.S.C. Chapter 94)

(i) 7 U.S.C. §6513, Organic Plan

From a legal standpoint, the National Organic Program has the first say about whether hydroponics should be prohibited from obtaining Organic certification. From a practical standpoint, the NOP’s decision is probably also the last say, at least for a while. Theoretically, Congress could amend OFPA to expressly allow or prohibit hydroponics under the Organic program. As of right now, Congress does not appear ready to weigh in on this issue.

A Chronology of Previous Treatment by the NOSB and NOP

The discussion of whether and how to expressly regulate hydroponics under the Organic label has been ongoing since at least 1995. What follows is a rough historical outline of the hydroponics issue as dealt with by the NOSB and NOP.

(a) 1990 – Organic Foods Production Act

Through OFPA, Congress gave the USDA authority to create and administer a federal Organic marketing label. As noted previously, OFPA does not expressly prohibit hydroponics from certification.

(b) 1995 – NOSB Recommendation for Specialized Standards for Hydroponic       Production in Soil-less Media 

In the years preceding the NOP’s publication of the USDA Organic Regulations (in 2000), the NOSB carried out its advisory role by making recommendations to the NOP about what the impending regulations should say. In a 1995 recommendation, the NOSB stated that “[h]ydroponic production in soilless media to be labeled organically produced shall be allowed if all provisions of the OFPA have been met.” However, this recommendation was not included in the final USDA Organic regulations. The written transcript of the NOSB members discussing this 1995 recommendation indicates that some members of the Board were concerned about whether hydroponic production was consistent with the “philosophy” of organic agriculture.

(c) 2000 – USDA Organic Regulations

In 2000, the NOP published the first USDA Organic Regulations. Again, neither these regulations nor any subsequent additions or amendments to them expressly prohibit hydroponics from being certified Organic.

(d) 2003 – NOSB Crops Subcommittee Recommendation for a Guidance Document Relative to Hydroponics and Other Soil-less Growing Systems  

In 2003, the NOSB voted to publish a discussion document produced by the Crops Subcommittee on the subject of whether hydroponics could be certified Organic. The NOSB also recommended that the NOP not proceed with any rulemaking for hydroponics until a formal rulemaking recommendation was offered by the NOSB.       

(e) 2008-2009 – Crops Subcommittee discussion documents

At the NOSB meetings in 2008 and 2009, the Crops Subcommittee presented additional discussion documents related to “soil-less” growing systems in preparation for a final NOSB recommendation.

(f) 2010 – NOSB Recommendation: Production Standards for Terrestrial Plants in Containers and Enclosures

In 2010, the NOSB made a formal rulemaking recommendation to the NOP that included language about hydroponics. In its recommendation, the NOSB concluded that hydroponic production systems, as defined by the Board, could not be certified. The Board stated:

“Observing the framework of organic farming based on its foundation of sound management of soil biology and ecology, it becomes clear that systems of crop production that eliminate soil from the system, such as hydroponics or aeroponics, cannot be considered as examples of acceptable organic farming practices. Hydroponics…certainly cannot be classified as certified organic growing methods due to their exclusion of the soil-plant ecology intrinsic to organic farming systems and USDA/NOP regulations governing them.”

(g) 2010 – 2015 – No rulemaking from the NOP 

In the wake of the 2010 Recommendation from the NOSB, the NOP declined to issue new regulations that would prohibit hydroponic operations from obtaining Organic certification.

(h) 2015 – Hydroponics and Aquaponics Task Force

In 2015, the NOP established the Hydroponics and Aquaponics Task Force to conduct additional research and analysis of “soil-less” production systems. As described in the resulting report, “the task force was comprised of sixteen diversely qualified individuals that represented both the soil-based organic and hydroponic communities.” The NOP’s goal was to obtain more information about the types of hydroponic production systems being used commercially and about how these systems might fit—or not—within the regulatory framework of OFPA and the USDA Organic Regulations.

(g) July 2016 – Publication of Task Force Report 

The Hydroponics and Aquaponics Task Force Report was published in July. The report is split into three parts, each written by a separate subcommittee.

One subcommittee sought to clarify the 2010 Recommendation from the NOSB. The resulting report concluded, like the 2010 Recommendation, that hydroponic production systems could not be certified Organic under existing law and USDA regulations.

A second subcommittee wrote in support of allowing at least some models of hydroponic production to be eligible for Organic certification. This report includes analyses of various hydroponic production models and presents arguments for how these different models should be regulated by the NOP.

The third subcommittee reported on possible “alternative labeling options” that could be employed by the USDA in the event that hydroponic production is ultimately allowed by the NOP.

(h) Fall 2016 – NOSB meeting

At the Fall 2016 NOSB meeting, the Crops Subcommittee presented a proposal to allow hydroponics. This proposal, had it been voted on by the full Board, would have required a two-thirds vote of all NOSB members in order to overturn the previous 2010 NOSB recommendation that soil-less production should not be eligible for certification.

However, the Subcommittee itself voted 5 to 2 against the proposal and the full Board did not vote on it at all. Instead, the Board raised questions about the wording of the proposed recommendation. As described in the Crops Subcommittee’s Spring 2017 discussion document, “it was noted [by the Board at the Fall 2016 meeting] that if the vote were to result in a failed motion, there would be no recommendation going forward from the NOSB to the NOP. Therefore, the NOSB did not vote on the proposal, but voted to send it back to the Crops Subcommittee for further work.”

At the Fall 2016 meeting the NOSB did pass a resolution—not to be confused with a formal recommendation—stating that a consensus of the Board was of the opinion that purely water-based hydroponic systems could not be certified organic under existing regulations.

(i) Spring 2017 – Crops Subcommittee discussion document.

At the Spring 2017 NOSB meeting, the Crops Subcommittee presented a discussion document originally formatted as a proposal for recommended rulemaking. This document was not ultimately offered as proposal to be voted on by the NOSB because it was determined that new NOSB members needed additional time to study the issue.

The Spring 2017 discussion document offered new definitions for hydroponics, aquaponics, and aeroponics. The text of the document also proposed that these production models be prohibited from Organic certification.

(j) August 2017 – NOSB public webinar discussion on hydroponics, aquaponics, aeroponics and container-based production.

On August 14, the NOSB held a public webinar for the purpose of discussing possible rulemaking recommendations for hydroponics, aquaponics, aeroponics, and container-based systems. During this webinar, the Crops Subcommittee presented draft proposals prohibiting “soil-less” systems based on definitions used in the 2010 NOSB Recommendation. The Crops Subcommittee also presented a draft proposal for regulating soil-based container systems.

Both the Crops Subcommittee and the Board as a whole were divided on the issues of (1) whether enough information about various container-based growing systems is presently available to warrant a rulemaking recommendation to the NOP, and (2) if so, whether such recommendation should be to prohibit or to allow certification of hydroponics.

(k) Fall 2017 Meeting – Crops subcommittee proposals

In preparation for the Fall 2017 NOSB Meeting in Jacksonville, the Crops Subcommittee voted (by simple majority) to submit the proposals listed below for a vote by the full Board. Again, the NOSB has multiple options: it can pass a proposal as written (and issue a formal recommendation to the NOP), make non-substantive changes and then pass a proposal, reject a proposal, or refer a proposal back to Subcommittee.

Proposals

(i) Aeroponics – proposal is to prohibit from Organic certification.

(ii) Aquaponics – proposal is to prohibit from Organic certification. Recall that the definition of “aquaponics” used in this proposal incorporates the definition of “hydroponics,” below. 

(iii) Container-based production – proposal is to prohibit from Organic certification all container production of plants which does not meet the following criteria: “a limit of 20% of the plants’ nitrogen requirement can be supplied by liquid feeding and a limit of 50% of the plants’ nitrogen requirement can be added to the container after the crop has been planted. For perennials, the nitrogen feeding limit is calculated on an annual basis. Transplants, ornamentals, herbs, sprouts, fodder, and aquatic plants are exempted from these requirements.”

(iv) Hydroponics – proposal is to prohibit from Organic certification. Recall that the term “hydroponics” as used in this proposal is defined as a production system which does not fall within the percentage limits on liquid and after-planting nutrition found above.

 

Coming up next week :

The Fall 2017 NOSB meeting in Jacksonville, Florida, October 31 – November 2.

The issue of hydroponics in Organic agriculture is complicated. Stakeholders who believe hydroponics should be prohibited and those who believe it should be allowed each make valid points, and almost everyone agrees that hydroponic crop production has a place within our current food production system. Ultimately the question is one of administrative law and discretion: how should the NOP interpret the Organic Foods Production Act in creating regulations that deal expressly with hydroponics? The NOSB may provide its answer next week.

Look for Part 4 of this blog series to be published in mid-November with an analysis of the Board’s decision in Jacksonville.

Thanks for reading, and don’t hesitate to get in touch with me at glenn@carolinafarmstewards.org  with your questions and comments!

Hydroponics and the Organic Label (Part One)

hydroponic lettuce

By Glenn Kern, CFSA Organic Policy Coordinator

On October 31 through November 2, 2017, the National Organic Standards Board (NOSB) will hold its fall meeting in Jacksonville, Florida. Among the many issues that will be discussed by the Board is the question of whether crops grown in hydroponic production systems should be eligible for Organic certification under the Organic Foods Production Act (OFPA) and the related USDA Organic Regulations. The NOSB, in its capacity as a federal advisory committee, may soon issue a new recommendation on hydroponics to the National Organic Program (NOP), the office of the USDA responsible for overseeing the Organic label.

The National Organic Standards Board and the National Organic Program have been grappling with the question of hydroponics for years without a clear resolution.

At its core, the difficulty of the hydroponics issue arises from statutory and regulatory ambiguity: neither OFPA nor any USDA Organic regulation expressly prohibits or even defines “hydroponics,” thus leaving open for debate the question of whether this production practice should be eligible for Organic certification. Compounding the problem is the fact that hydroponic production systems are conceptualized as existing on a continuum of different growing methods—along with other container-based growing systems, greenhouse production, and of course traditional crop farms where plants are grown in the open ground. Defining and distinguishing between the less traditional growing methods on this continuum has proven to be a thorny task for the NOSB and the NOP.

I’m writing today because we at CFSA would like to know what our members think about hydroponics and whether this production practice should be eligible for Organic certification. CFSA staff will be in attendance at the NOSB meeting in Jacksonville, along with many other stakeholders in the Organic industry. We won’t be submitting comments about hydroponics to the Board in October, but we may take a position at a future meeting if we learn that our members will be affected by any proposed regulations either prohibiting or allowing hydroponics.

What follows is the first of four installments in a series of blog posts about hydroponics and the Organic label. The second and third installments will be published on October 17 and 24, respectively. The fourth installment will be published after the NOSB meeting in Jacksonville and will provide a synopsis of any decision the Board makes about hydroponics.

For those of you who are already familiar with the debate and are ready to put in your two cents, please feel free to email me with your comments at glenn@carolinafarmstewards.org. All replies are confidential and we’d be grateful to hear from you.

If you want to learn more about what hydroponic growing systems are, what the law and regulations say, and what arguments are being made by those in favor of and opposed to allowing hydroponics, read on!

Part One

(A) The Regulatory Roles of the NOSB and the NOP           

Before diving into the specifics of the debate about whether hydroponics and other container-based production systems should be “certifiable,” it may be helpful to review the relative roles of the NOSB and the NOP in creating USDA Organic regulations like those being contemplated for hydroponics.

The National Organic Program (NOP) is an office of the USDA located within the Agricultural Marketing Service (AMS). As a part of a federal administrative agency, the NOP is responsible for implementing legislation passed by Congress—in this case, the Organic Foods Production Act of 1990 (OFPA), which is the same law that authorized the USDA to create the NOP. The NOP, like all other administrative entities, must implement legislation in accordance with the Administrative Procedures Act (APA), another law passed by Congress that governs the functioning of administrative agencies, including the process of “rulemaking.” Rulemaking—i.e. the creation of regulations—is one of the means by which administrative agencies carry out the obligations imposed on them by Congress. A “rule,” as defined by the APA, is the “whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency….” Put another way, regulations are legally binding statements (“rules”) made by a federal agency to its staff, to citizens, to industry, and to other parts of government about how a law will be implemented. 

Although writing the USDA Organic regulations is the sole responsibility of the NOP, Congress included a provision in the Organic Foods Production Act designed to ensure that the NOP would receive input from private citizens and stakeholders throughout various sectors of the Organic industry. OFPA directed the Secretary of the USDA to establish the National Organic Standards Board, a federal advisory committee whose purpose is to assist in the development of standards for substances to be used in Organic production and to advise the Secretary (through the NOP) on any other aspects of the implementation of OFPA. The specific composition of the NOSB is dictated by OFPA. The 15-member Board must include:

(a) four individuals who own or operate an organic farming operation;
(b) two individuals who own or operate an organic handling operation;
(c) one individual who owns or operates a retail establishment with significant trade in organic products;
(d) three individuals with expertise in areas of environmental protection and resource conservation;
(e) three individuals who represent public interest or consumer interest groups;
(f) one individual with expertise in the fields of toxicology, ecology, or biochemistry; and
(g) one individual who is an Organic certifying agent.

The NOSB is further divided into seven Subcommittees, which are responsible for conducting research and analyses and drafting proposals for consideration by the full Board:

(a) Executive;
(b) Certification, Accreditation, and Compliance;
(c) Crops;
(d) Handling;
(e) Livestock (including Aquaculture);
(f) Materials (including GMOs); and
(g) Policy Development.

Key activities of the Board include:

(a)  Assisting in the development and maintenance of organic standards and regulations;
(b)  Reviewing petitioned materials for inclusion on or removal from the National List of approved and Prohibited Substances;
(c)  Recommending changes to the National List;
(d)  Communicating with the organic community, including conducting public meetings, soliciting and reviewing public comments ; and
(e)  Communicating, supporting and coordinating with the NOP staff.

The NOSB typically meets twice per year, once in the spring and once in the fall. These meetings are open to the public and are the means by which the Board formally carries out the advisory role for which Congress intended it to serve.

At each NOSB meeting, subcommittees present to the full Board their discussion documents and policy proposals related to specific regulatory issues. For each issue, the NOSB hears live and written testimony from the public before deliberating and voting on whether to adopt a discussion document or proposal. An adopted discussion document creates a record of research and analysis conducted by a subcommittee; generally speaking, a subcommittee will provide the full Board with one or more discussion documents on a particular regulatory issue, sometimes over the course of several years, before it provides the Board with a policy proposal. Once a policy proposal is offered to the full Board by a subcommittee, the Board may respond in a variety of ways, including but not limited to (1) adopting the proposal as presented by the subcommittee, (2) amending the proposal in a “non-substantive” manner before adopting it, (3) rejecting the proposal, and (4) referring the proposal back to subcommittee for further development. Any proposal that is adopted by the Board is conveyed to the NOP as a “recommendation” to be used as guidance in its enforcement and rulemaking efforts.

Importantly, the NOSB’s recommendations are not binding on the NOP. As stated in the NOSB Policy and Procedures Manual,

“The USDA cannot delegate its authority as a regulatory body to private citizens, even when those private citizens are appointed by the Secretary to provide advice. Therefore, the NOSB cannot direct USDA or bind the Secretary through its actions; for example, it cannot obligate funds, contract, make NOP staffing decisions, or initiate policies of its own accord.”

However:

“[T]he unique nature of the NOSB and its relationship with the NOP, as established through OFPA, requires that the volunteer Board, which regularly receives stakeholder input through public comment, must work collaboratively with the NOP. Similarly the NOP, as required through OFPA, must consult and collaborate with the NOSB.”

When the NOSB Board meets in Jacksonville, Florida at the end of October, its members will consider proposals presented by the Crops Subcommittee that address various “non-traditional” growing systems, including hydroponics. Specifically, one of the Subcommittee’s proposals is to expressly prohibit hydroponic growing systems from obtaining Organic certification. A more detailed discussion of the Crops Subcommittee’s proposal, including how it has chosen to define “hydroponics” and other non-traditional growing systems, will be included in the second and third installments of this blog series.

There is no guarantee the Board will actually vote to pass or reject the Crops Subcommittee’s proposal as written; rather, the Board may refer the proposal back to the Subcommittee for more development. Some members of the Crops Subcommittee are opposed to the current proposal and have submitted a written analysis of their “minority view” for consideration by the larger Board. Furthermore, based on a public webinar discussion held by the NOSB in August, the Board as a whole appears split on the issue of whether a rulemaking recommendation for hydroponics is appropriate at this time, and if so, what the recommendation should be.

Coming up next: 

That’s all for now, folks! Please don’t hesitate to email me at glenn@carolinafarmstewards.org if you have comments or questions. If you want to know more about hydroponics and the Organic label, make sure to stay tuned for the remaining installments, with release dates and discussion topics listed below.

Part Two : October 17 

  • What exactly are hydroponic systems and how are they different from growing food in the ground?
  • What is the current regulatory treatment of hydroponic agriculture within the Organic program?

Part Three : October 24    

  • What arguments are being made in opposition to and in support of allowing hydroponics to be certified Organic? 
  • What have the NOSB and the NOP done in the past to address this issue? 

Part Four : TBD (mid-November)    

  • What happened at the NOSB meeting in Jacksonville, Florida?          

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