Program underfunded, recommendations aren't followed, pesticide testing rarely done

Synthetic pesticides don't belong on organic produce.

But studies published in Consumer Reports and academic journals show that conventional pesticides occasionally end up on organic salad greens or apple skins, due to past soil contamination, drift from neighboring farms or actions of unscrupulous operators.

The Organic Foods Production Act - the cornerstone of U.S. organic law - requires regular testing of farms for pesticide residue, adding an extra layer of protection for consumers.

Though seven years have passed since organic regulations first took effect, pesticide-residue testing still is almost never done.

In fact, according to Miles McEvoy, a top federal organic official, only one of 100 government-accredited organic certifiers conducts regular testing, taking annual samples from just 5 percent of the farms it inspects.

That unfulfilled mandate illustrates what the Organic Consumers Association, National Organic Coalition and other groups say is a lack of action by the U.S. Department of Agriculture's National Organic Program, creating a chasm between consumer expectations and actual industry practices.

Organic program leaders say a small staff and limited funding - the NOP's 2009 budget was $3.87 million - have hampered its ability to adopt much-needed changes to organic regulations and punish operations in violation.

But Nancy Ostiguy, a former member of the National Organic Standards Board, which recommends changes to organic rules, said the USDA's "not-so-benign neglect" and conflicted mission contribute to the organic program's shortcomings.

"The USDA was - and to a large extent, still is - the wolf watching the chicken house," said Ostiguy, a Penn State University entomology professor. "It has this dual role of both promoting agriculture and protecting the public against poor agriculture practices. It has this difficulty with which hat it is supposed to be wearing, when."

Others, including the Cornucopia Institute, an organic watchdog group, blame USDA inaction on a pro-big-business political philosophy and a reluctance to put the brakes on the $23 billion U.S. organic-food industry.

Whatever the cause, since 2002, the organic program has not implemented a single one of the standards board's 65 proposed changes to organic rules.

And in the same seven years, the USDA has fined just three operators a total of less than $20,000 for confirmed cases of organic fraud.

National Organic Coalition policy coordinator Liana Hoodes said the organic program is still fairly new, and some wrinkles are expected. But, she said, strong national organic regulations are worthless without consistent oversight and enforcement.

"The (organic) label needs some help," Hoodes says. "It will either clean up its act or get surpassed by many other labels. ...

"There would be nothing more rigorous than this on a food label - if they did it right."

An unfunded mandate

When the National Organic Program opened its doors in 2002, the U.S. organic industry was on the cusp of a tremendous boom.

The Organic Foods Production Act, passed 12 years earlier, authorized the organic program's creation. The Agricultural Marketing Service, a USDA branch, administers the program, which implements and enforces national organic regulations.

The USDA calls the NOP a marketing initiative, not an agriculture, food-safety or nutrition program. Its stated goals include growing the organic industry, while simultaneously safeguarding consumers against fraud.

Originally, the organic program had an annual budget of $1.6 million - less than .003 percent of the USDA's 2002 spending - and a staff of six.

Through 2007, the program's budget fluctuated between $1 million and $1.6 million. Its staff ranged from five to eight people.

By 2009, both doubled. The organic program that year had a budget of $3.87 million and a staff of 16.

But still, funding has not kept pace with organic food sales, which have soared 265 percent since 2002, according to the Organic Trade Association.

"This industry has grown a lot faster than funding has," said Alexis Baden-Mayer, political director for the Organic Consumers Association. "Funding started out small. The NOP definitely needs more resources."

Limited resources have forced the organic program to scrap original mandates, including pesticide-residue testing. Due to its expense, testing is currently done only if a problem is suspected, new program head Miles McEvoy said in an interview.

Meanwhile, entire areas of the organic industry, including garden and personal-care products, go completely unregulated, Baden-Mayer said.

Perhaps most significantly, lack of resources threatens the program's ability to make and enforce organic rules.

"Limited funding and staff were the biggest hurdles the NOP faced in the early years," Mark Bradley, director of the program's accreditation and international activities division, said via e-mail. "Researching and writing regulations takes time and people, as does investigating violations."

Shades of gray

Existing organic standards often are vague.

Current guidelines for livestock health, care and living conditions, for example, run just two pages.

Rules not specifically spelled out leave room for interpretation by individual farmers and certifiers, on issues ranging from the use of certain vaccines to how much pasture time is acceptable for organic animals.

"If nothing is said, it's silent - anything goes," said Dr. Hubert Karreman, a Gap-based organic bovine veterinarian who serves on the NOSB.

The National Organic Coalition, which represents farmers, consumers and environmentalists, has accused the organic program of offering inconsistent interpretations to certifiers seeking clarification of the standards.

Certifiers - who inspect organic farms annually and whose names appear on food labels alongside the USDA seal - are confused, Hoodes said. "They haven't had consistent information on how to interpret a standard."

The inconsistencies force certifiers to make their own rulings. In 2001, Karreman petitioned the standards board to allow certain pain relievers in organic animals. Up until the petition's approval six years later, he said, some certifiers allowed the medications while others did not.

Certain certifiers, Hoodes said, have reputations for being stricter than others, leading some organic producers to "shop" for more lenient ones.

What's more, regional differences in weather and daylight hours make it difficult to adopt and enforce across-the-board rules, said Betty Kananen, president and CEO of Global Organic Alliance, an Ohio-based certifier.

In Maine, for example, cows might realistically graze for only 120 days per year, while California's growing season lasts much longer.

"It's pretty difficult to legislate what everyone should do," Kananen said. "It does leave those areas gray. I don't know if they will ever become black and white.

"Farming is not black and white."

An ignored board

The National Organic Standards Board recommends changes to federal organic regulations.

That advice often goes unheeded.

"We don't have much power," said Karreman, one of 15 volunteer board members. "We've got 65 recommendations sitting in a closet somewhere."

At last May's board meeting, former NOP head Barbara Robinson said program staff had not studied any of the board's procedure recommendations since 2002. She said the lack of action was due to limited resources.

While lack of resources may partially explain the inaction, Karreman said, "that's too easy an excuse for all that time - for seven years."

The slow pace of government action might be best illustrated by the pasture rule, which the board first proposed in 2001.

The rule aims to clarify the amount of time organic animals should spend on pasture. Critics, including Cornucopia, say some large-scale dairies exploit loopholes in the current standards, confining cows indoors most of the time and allowing only rare opportunities to graze.

The current version of the still-unadopted rule would require organic operations to allow animals to graze daily during the growing season (which varies by region), and longer, if possible. Animals would have year-round access to the outdoors, and total confinement would be outlawed.

If adopted, the new rule could force dramatic changes to many existing organic farms, especially large-scale dairies.

The pasture rule has attracted intense interest, with more than 80,000 public comments at hearings and in writing. Most of those consumers said they pay a premium for organic milk because they expect it to come from grass-fed cows.

McEvoy, who was appointed NOP deputy administrator in October, attributed the delay to the slow-moving nature of federal rule-making, with several rounds of public comment and a staff of just two rule writers.

But consumer advocate Baden-Mayer suspects the delay is by design.

"I think the USDA didn't want to weigh in on this controversy and make it difficult for a part of the industry that's growing really fast and making a lot of money," she said.

The Organic Consumers Association, Cornucopia and other groups accuse some large corporations of unfairly influencing the organic market, putting smaller producers at a competitive disadvantage.

Other groups, including the Organic Trade Association, say large companies help meet the rising demand for organic food. McEvoy, former director of the Washington state organic program and founder of The Food Alliance, said there is room for organic producers of all sizes, as long as they follow the rules.

NOSB chairman Jeffrey Moyer, farm director at the Rodale Institute in Kutztown, said that while the public is invited to attend and comment, most board meetings attract a sparse crowd.

"The industry is over-represented," he said. "The industry wants its voice heard, and of course, they have the resources to send people (to meetings)."

Lack of enforcement

Consumers must depend on the USDA to identify and punish cases of organic fraud.

Since 2002, the government has fined three operations for misrepresenting food as organic.

In 2008, Private Label Foods of Rochester, N.Y., paid an $11,000 fine for selling more than 26,000 jars of pasta sauce knowingly mislabeled "organic."

The previous year, High Desert Foods, of Colorado, paid a $2,750 fine for mislabeling nonorganic sauces, nuts and other products as "organic."

And in 2006, Canada's Wolfe Honey Co. paid a $2,500 fine for selling uncertified honey as "organic."

USDA online data shows that 18 operations have lost certification, including a New York farm that treated cows with hormones and an Iowa farm that applied a banned herbicide to a soybean field.

The organic program's Bradley said that despite the relatively low number of fines and revocations, complaints are thoroughly investigated.

"Given the newness of the regulations and limited resources at the program's disposal, our earliest efforts were geared toward bringing producers and handlers into compliance," he said. "Usually all it took was a letter and a follow-up review."

Sometimes enforcement is a long time coming. A 2005 organic program audit by the USDA Inspector General's Office noted that a handful of complaints weren't resolved within three years.

Karreman said that during his board tenure, the USDA imposed no serious punishments for violations. Instead, he said, the government opted to fuel industry growth with lax regulation.

"If the cash register is ringing up, why would they want to boot somebody?" he said.

A well-publicized 2006-07 USDA investigation found that Aurora Organic Dairy - which sells private-label milk to Target, Walmart and Costco, among others - willfully violated 14 organic standards. Aurora, the USDA said, did not allow its herds, which included nonorganic cows, to adequately graze.

Under organic regulations, Aurora, which operates several facilities with herds numbering in the thousands, could have lost its certification or paid millions of dollars in fines. Instead the dairy agreed to a one-year probation and "major adjustments" at one of its sites.

In a document explaining its decision, the USDA said compliance with standards is its first priority, and the agreement allowed for immediate action. Litigation could have taken several years to resolve.

Aurora defended its practices in a press release, saying it produces high-quality milk at prices consumers can afford.

"There is absolutely no basis for claims we defrauded consumers by selling milk that isn't organic - none whatsoever," Aurora chairman and CEO Marc Peperzak said in the release. "Our milk is and always has been organic."

Cornucopia, which filed the original complaint against Aurora, called the agreement a "sweetheart deal" sanctioned by a pro-big-business Bush administration.

Ned MacArthur, president of Avondale-based Natural Dairy Products Corp., which bottles Natural by Nature organic milk, said Aurora's punishment did not go far enough.

"It goes to show you, USDA either doesn't care or isn't capable of enforcing the standards as they are now," said MacArthur, who collects milk from 11 Lancaster County Amish farms. " ... What good is the law if there's nobody to enforce it?"

Change on horizon?

Some organic advocates see reason for hope in President Barack Obama, with his fondness for Honest Tea and his family's organic-style garden on the White House lawn.

Obama's appointments of McEvoy and deputy secretary of agriculture Kathleen A. Merrigan, a Tufts University professor and former NOSB member who helped write the original organic law, won wide praise from organic advocacy groups.

The president's budget for fiscal year 2010 nearly doubles the organic program's funding, to $6.97 million. (Still, that figure represents just .005 percent of the USDA's $134 billion budget.)

The program's 2010 staff will nearly double, to 31 people. Most of the new employees will work in three branches: accreditation and international; compliance and enforcement; and standards. Those branches also will get the bulk of funds in the annual budget.

"The increased budget and new staff that we are currently in the process of hiring will certainly help," Bradley said.

At the NOSB's November meeting, McEvoy announced a "new age of enforcement" in organics and stressed the need for clear, consistent rules.

Later that month, the USDA suspended certification for Promiseland Livestock, one of the nation's top organic cattle producers. According to a USDA document, an investigation uncovered willful violations of organic rules, including failure to keep proper records.

McEvoy said he plans to step up oversight by implementing unannounced inspections of organic operations, boosting retail-level compliance with market surveillance, and fulfilling the pesticide-residue testing mandate.

McEvoy named adopting previous board recommendations as another priority. He said he expects to finalize the pasture rule early this year.

Organic program staff, he said, also will write a manual to clarify and help certifiers interpret the standards.

Meanwhile, the National Institute of Standards and Technology is conducting an independent audit of the organic program, particularly its standards and certifiers, in an effort to boost transparency and public confidence.

Hoodes, of the organic coalition, said the audit will help standardize inspections and interpretation of standards. She said she expects the additional oversight will limit certifier "shopping" and organic fraud.

At the November meeting, the NOSB approved sweeping changes to animal- welfare standards, spelling out specifics on everything from organic animals' living conditions to physical alterations, like docking tails.

McEvoy said the new rules likely will take effect in about five years.

Contact Lancaster Newspapers staff writer Mary Beth Schweigert at mschweigert@lnpnews.com.