Organics Advocates issue a challengeable certification in hydroponics

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The decades-long struggle for organic certification of hydroponically grown foods is about to be resolved. The ninth district appeals court will rule on an appeal from the Center for Food Safety (CFS) on a case aimed at blocking certification of non-grown food in the ground. On May 19, 2021, CFS filed an appeal asking the Ninth District to overturn a district court ruling confirming the U.S. Department of Agriculture’s decision that hydroponically grown foods qualify for National Organic Program (NOP) certification are entitled. The outcome of the appeal could have a significant impact on hydroponically grown fruits and vegetables as well as other soilless crops, including mushrooms and sprouts.

Hydroponic certification has split the organic community almost since the introduction of the NOP. CFS brought the debate to court in 2019, along with the Maine Organic Farmers and Gardeners Association, OneCert, Inc. (an independent certification body), and six organic food manufacturers after the USDA rejected a CFS petition requesting the exclusion of hydroponics agricultural production systems with organic certification. The petition argued that certification of hydroponics, defined as “systems that contain, to some extent, containers containing plant roots either in a liquid solution or in various solid substrates”, does not comply with the requirements of the Organic Food Production Act (OFPA) for “organic” integrated organic production practices ”, including the obligation for organic producers to develop cultivation plans that promote soil health and conserve biodiversity. The USDA rejected the petition on the grounds that OFPA’s soil-related requirements only apply to plants grown in the ground and that hydroponic systems that may have ecological benefits should not be categorically excluded from certification.

The CFS coalition filed a lawsuit against the USDA’s rejection, but the District Court for the Northern District of California dismissed the USDA’s interpretation of the OFPA. Among other things, the court found that the USDA had reasonably determined that “OFPA does not enforce the ban on hydroponics”.

A Ninth Circle ruling in favor of the USDA could help overcome a decade of uncertainty, while a victory for CFS and its allies would cast doubt on the certification of all soilless crops, including hydroponics, mushrooms and sprouts, and aquaponics with fish farming in complementary production systems). There is currently no formal NOP guideline or guideline for certification of soilless plants, and some certification bodies certify hydroponics as organic while others decline. The first state hearings on hydroponics certification resulted in a recommendation by the National Organic Standards Board (NOPSB) in 2011 to deny hydroponics certification. The USDA declined to act on the recommendation. Six years later, the NOSB changed its position in a split vote, narrowly rejecting a proposed recommendation to rule out hydroponics. The CFS petition followed.

Opening letter from the petitioners is on July 19, 2021 in Center for Food Safety et al. v. Vilsak, Case no. 21015883.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XI, Number 166

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