Would you call beer "organic" if it were made with non-organic hops? USDA would.

USDA’s history of regulating organic food is checkered, to say the least. In the latest installment, USDA is proposing to allow 38 more non-organic substances in food labeled “organic.” And the agency provided just seven days for public comment on the rule. The comment period ends tomorrow, May 22.

This story never seems to take a positive turn.  For present purposes, we can start in December, 2000, when USDA issued labeling standards for the term “organic” that violated the Organic Foods Production Act (OFPA). OFPA says that products labeled “organic” cannot contain non-organic ingredients unless they have been placed on the National List of Allowed and Prohibited Substances. USDA's rule, in contrast, permitted products labeled “organic” to contain non-organic substances so long as producers obtained certification that organic versions of the relevant ingredients were not available. Why should it matter whether substances are on the list?  It seems to me that the process of getting a substance listed is key to OFPA’s effectiveness:  A producer petitions for a substance to be listed; the National Organic Standards Board issues a recommendation on the petition; and USDA can add the substance to the National List only after notice-and-comment rule making in which members of the public can voice their opinions. Under USDA’s rule, none of this had to occur.

When challenged in court, USDA disavowed its own rule, arguing that it did not mean what USDA had been saying it meant, and that "organic" products could contain non-organic ingredients only if they were on the National List. The First Circuit went out of its way to hold that USDA’s abandoned interpretation was unlawful, apparently because it suspected that USDA might revert to the old interpretation once it got out of court. See Harvey v. Veneman, 396 F.3d 28, 35-36 (1st Cir. 2005). On remand, the district court entered a declaratory judgment that this portion of the regulations was unlawful but stayed the effect of its ruling until June 9, 2007 to prevent consumer confusion, commercial disruption, and needless litigation.

Over two years later, industry continues to use unlisted non-organic substances in products labeled "organic."  USDA's response?  On May 15, 2007, it proposed to legalize industry practice by adding 38 new non-organic substances to the National List (which currently contains only 5 items). As USDA sees it, producers have been violating the law, so USDA had better change the law:

Since many producers, handlers and certifying agents may have misinterpreted National List regulations § 205.606 to mean that any non-organic agricultural product that was not commercially available in organic form could be used in organic products without being individually listed on the National List, these 38 substances currently are being used in organic products. These 38 substances will be prohibited for use in organic products beginning June 9, 2007, unless they are added to the National List. Loss of the use of any of these products would disrupt the trade of food products currently being labeled as ‘‘organic’’. Therefore, the continued allowed use of these products as ingredients in foods labeled as ‘‘organic’’ is necessary to prevent possible significant business disruption for organic producers and handlers.

Many of the substances to be permitted are used primarily or exclusively for artificial coloring—something many people would deem unnecessary, if not anathema, to “organic” food. And, as mentioned in the headline of this post, hops are one of the items to be added to the National List. Thus, the new rules would permit beer to be labeled “organic” even when one of its main ingredients is not organic.

Adding insult to injury—or procedure to substance, if you will—USDA provided just seven days for public comment. The comment period ends tomorrow, May 22.