By Glenn Kern, CFSA Organic Policy Coordinator

(Part one, two, and four.)

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.

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!

By Glenn Kern, CFSA Organic Policy Coordinator

Welcome, readers, to this fourth and final installment of CFSA’s blog series about hydroponics and the USDA Organic label.

(Part one, two, and three.)

By now, those of you who have been monitoring the hydroponics debate will have learned that at the beginning of November, the National Organic Standards Board delivered what has been widely reported as a “win” for proponents of allowing hydroponics under the Organic label. This final post will discuss what occurred at the NOSB meeting in Jacksonville, the regulatory effect of the Board’s decision, and possible next steps for the NOP and NOSB.

Part Four

The vote

As discussed previously, in preparation for the Fall 2017 NOSB meeting, the Crops Subcommittee presented the full Board with four separate proposals related to container-based growing systems: (1) to prohibit aeroponics from Organic certification; (2) to define hydroponics as a container-based growing method wherein crops are supplied with more than 20% of their required nitrogen from liquid feeding and more than 50% of their required nitrogen from fertilizer added after planting, and to prohibit such systems from Organic certification; (3) to define aquaponics as a sub-type of hydroponics and to prohibit such systems from Organic certification ; and (4) to allow container-based production systems to become certified only if both the 20% and 50% nitrogen limits are not exceeded.

The week before the NOSB meeting, the Board heard six hours of public comments from stakeholders during online conference calls. Several days later in Jacksonville, the Board heard another seven hours of comments from concerned farmers, handlers, certifiers, industry associations, consumers, and other advocates who were present. These thirteen hours of live comments were in addition to more than 2,300 written comments submitted by stakeholders from across the country. Not all of these comments focused on hydroponics—there were dozens of other regulatory issues on the NOSB’s agenda in Jacksonville—but many did.

Proponents of Organic hydroponics urged the Board to reject the Crops Subcommittee’s proposals. Many of these commenters touted hydroponic farms as efficient systems that use less water than traditional field-based operations, minimize fertilizer runoff, create opportunities for growing fresh food in urban areas and, relatedly, present a viable option for aspiring farmers who don’t have access to farmland. Proponents also pointed out that hydroponic systems can be operated without the use of synthetic pesticides, herbicides, and fertilizers which are prohibited under the USDA Organic regulations.

Some hydroponic farmers who were present in Jacksonville told the Board that the 20% and 50% limits on nitrogen were unworkable for their operations. Others—including some container farmers who produce berries in compost or soil-based growing media—said that while their systems could potentially comply with these nitrogen limits, compliance would come at the cost of increased nutrient leaching (due to an excess of soluble nitrogen being present at times when plants would be incapable of sufficient uptake) or huge increases in labor costs (due to the need to replace liquid feeding with compost amendments). Some container farmers argued that the 20% and 50% limits were arbitrary and not capable of enforcement by certifying agents—arguments with which some certifying agents agree.

Opponents of allowing hydroponics under the Organic label focused their arguments on the importance of soil in organic farming. Some pointed to specific provisions of the Organic Foods Production Act and the USDA Organic regulations which are interpreted by many farmers and Organic stakeholders as requiring in-ground production, soil tillage, and crop rotation. Many soil farmers spoke about the history of organic agriculture and the soil-focused philosophical heritage from which the USDA Organic program was created. They objected to what they view to be a dishonest attempt by hydroponic farmers to take advantage of the market demand for Organic food without committing themselves to the underlying principles of organic agriculture.

In contrast to the assertions by hydroponic growers that container-based systems are resource efficient, some advocates of soil farming pointed out that hydroponic systems often require large amounts of electricity and lack carbon sequestration capability. Soil farmers also argued that, in contrast to the letter and spirit of OFPA, hydroponic farms are not capable of increasing on-farm biodiversity in comparable ways to traditional organic farms.

In the end, the Board voted 14 to 0, with one abstention, in favor of the proposal to prohibit aeroponics. But as to hydroponics, aquaponics, and nutrient limits for container production, the Board voted 8 to 7 against the Crops Subcommittee’s proposals. Board members who voted against the Crops Subcommittee’s proposals gave varying reasons for their decisions, ranging from the importance of food access in urban areas to a concern that the proposed 20% and 50% nitrogen limits were arbitrary. Those who voted in favor of prohibiting hydroponics stated their positions in different ways, but they were united in their belief that the Organic regulations should not be interpreted oramended to allow for soilless production systems.

What it means

To be clear, the Board’s vote to reject the Crops Subcommittee’s proposal is not equivalent to a vote in favor of allowing hydroponics. There was no proposal to expressly allow hydroponics on the Board’s agenda and, consequently, no recommendation for pro-hydroponic rulemaking was possible. As explained previously in this blog series, the current position of the USDA National Organic Program is that OFPA and the Organic regulations do not categorically prohibit hydroponic or other container-based systems.

The result of the Board’s vote is that, with the exception of aeroponics, the NOSB will not be making any new rulemaking recommendations to the NOP with respect to container-based systems.

Rather, a hydroponic system may be certified Organic if an accredited third-party certifier determines that it complies with all applicable provisions of OFPA and the Organic regulations. Historically, some certifiers have been willing to approve hydroponic operations while others have not, and the NOP has not offered certifiers guidance in making this determination.

The result of the Board’s vote is that, with the exception of aeroponics, the NOSB will not be making any new rulemaking recommendations to the NOP with respect to container-based systems. Thus, the NOP is left with the Board’s standing 2010 recommendation that hydroponic operations—as therein defined—should be prohibited from obtaining Organic certification. However, the NOP previously determined that the 2010 recommendation was too incomplete to be relied on for comprehensive rulemaking. Consequently, individual certifying agencies will (for now) continue to decide whether a particular hydroponic or aquaponic growing system is eligible for Organic certification.

The upshot of the Board’s vote is that the regulatory uncertainty and inconsistency for hydroponics under the Organic label has not been resolved. Nonetheless, the Board’s unwillingness to recommend a categorical ban on hydroponic operations does signal to container-based growers who currently market their products as certified Organic that they may continue to do so without fear of imminent regulatory changes affecting their businesses. This relative certainty is the “win” for hydroponics that the Board delivered.

Next steps

Could the NOP proceed with rulemaking despite the failure of the NOSB to provide a recommendation at the Fall 2017 meeting? In theory, yes. Will the NOP do this? Probably not.

The NOP, not the NOSB, is responsible for deciding whether and when to propose new Organic regulations. OFPA and the Federal Advisory Committee Act require that the NOP consult with the NOSB on issues related to the implementation of the law, and the NOP has fulfilled this statutory obligation with respect to hydroponics. Furthermore, the NOP is not limited to issuing regulations that align with recommendations from the NOSB. However, given the degree of influence that the NOSB’s recommendations have historically commanded, the divisive nature of the hydroponics issue, and the NOP’s previous inaction in the absence of a comprehensive recommendation on hydroponics from the NOSB, it seems unlikely that the NOP will proceed to rulemaking.

Some Organic stakeholders and NOSB members have suggested that a separate “Organic Hydroponic” label may be a possible long-term solution. At the very least, this option would require the NOP to issue new regulations containing firm definitions and standards for hydroponic production, as well as requirements that producers and handlers disclose the use of this production method on applicable products. This option would provide consumers with information about the origins or their food without prohibiting container-based systems from obtaining certification. Although the 2016 Hydroponics Task Force addressed the feasibility of an alternative labeling option in its final report, the NOSB itself has not evaluated this option as part of its work agenda. That may change in 2018.

Needless to say, whichever direction the NOP and NOSB go from here, we’ll keep you posted!

We hope this has been a helpful discussion, and as always, don’t hesitate to get in touch with me at glenn@carolinafarmstewards.org with questions or comments!

Hydroponics and the Organic Label (Part Three)