Commentary by Mark A. Kastel
The meeting was opened by Dr. Jennifer Tucker, Deputy Administrator of the National Organic Program.
Legality of Meeting
Dr. Tucker claimed that the meeting was being legally conducted because the requirements for a “quorum” have been met. However, that’s a different subject entirely from whether the board itself is legally constituted.
The Organic Foods Production Act of 1990, as passed by Congress, instructs the USDA Secretary to create a 15-member expert advisory panel with seats specifically designated for various industry constituencies (farmers, consumers, environmental scientist, certifiers, handlers, etc.).
The board meeting this week in Omaha is comprised of only 10 members — with specific constituencies either underrepresented or lacking any representation. That is not what the law intended. Any votes/business conducted during this meeting could very well be challenged in court.
Dr. Tucker reported that the NOP had reviewed applications and made recommendations for new NOSB members, but their recommendations had not been acted upon yet by the political appointees running the USDA.
Investigating Import Fraud
Interdicted $1.5 million worth of allegedly fraudulent imports (12 shiploads), in addition to soybeans, a frequently fraudulent import; problems associated with oilseeds, herbs, and plant-based protein.
Top import (by dollar volume): beef, primarily from Australia and Uruguay. Investigations into Uruguay found problems with “origin of livestock” (meaning that exporters were using conventional calves).
Twenty suspects identified in the “Black Sea region” which has been responsible for many past scandals.
Testing taking place in West Africa.
Problems with fumigant’s detected in imports of fresh produce from Central and South America, as well as continuing problems with Mexico.
A Standardized Organic Systems Plan
Dr. Tucker presented a comprehensive overview of the department’s effort to come up with a common organic systems plan (OSP), a form used by farmers to articulate their management practices in initial and/or annual reports to their certifiers. Historically, every certifier has had its own forms.
Dr. Tucker outlined a close collaboration with one particular software company, Wolf and Associates, one of the largest and most prominent corporate agribusiness consultants in the organic industry, and the Accredited Certifiers Association (ACA), a trade group representing certification businesses.
Personally, I don’t think this sounds kosher. The law governing organics, the Organic Foods Production Act, mandates that the USDA Secretary consult with the NOSB in implementing regulatory oversight. But they were bypassed in the final process. And instead of issuing a “request for proposal” and taking competitive bids gauging qualifications and costs, the NOP just took it upon themselves to select a winner. They are encouraging all certifiers to adopt this new software/form.
Let’s hope it works out but this didn’t sound like it followed proper procedure.
Risk-Based Certification
There’s quite a discussion about how to dumb down the annual certification process. This has become a common point of discussion since the Strengthening Organic Enforcement (SOE) went into effect, attempting to crackdown on import fraud. It’s made annual certification much more expensive for small and medium-sized domestic farmers who have been caught in the USDA dragnet. There’s also been a shortage of qualified organic inspectors.
OrganicEye has suggested less frequent inspections and the redirection of those funds to senior auditors and forensic accountants to do serious, unannounced investigations. So far that has not gained traction. Instead, the proposals are just to decrease the amount of scrutiny, which could create a whole new problem in itself. There was a lot of discussion about the discretion and definition of risk that the certifiers will now oversee in dealing with their “clients.”
Public Comments
E-Commerce Required Organic Labeling
Both representatives of the Organic Trade Association, a lobbying group representing agribusinesses, and one of their key members, the CROPP Cooperative (Organic Valley), suggested it would be hard to enforce the requirement that information, currently mandated by law to appear on organic packaging, be displayed on web pages.
They created a bit of a smokescreen regarding whether or not a retailer, brick-and-mortar or online, is exempt from certification (because they just sell products in packages rather than doing any processing themselves). However, this is not germane to the question of requiring the required disclaimers online. Neither is it the responsibility of the manufacturer if an online retailer does not comply with the regulations.
The proposal brought forth by OrganicEye has otherwise received universal support. And there was an abundance of testimony supporting its adoption as a formal regulation, as we recommended, rather than as a guidance that is not enforceable.
NOSB Day Two Update
Today the full board considered recommendations from the Livestock and Crops subcommittees on adding new materials and reviewing materials at sunset. They also listened to an expert panel on the use of organic seed in an effort to make that more widely available.
The Compliance, Accreditation, & Certification Subcommittee (CACS) presented their recommendations on two policy issues that, reportedly, received more public input than anything else on the agenda: protocols for testing agrichemical residues and an OrganicEye-petitioned proposal to regulate online organic labeling.
Testing
The current law requires testing and, in our opinion, the proposals on the table leave too much up to the discretion of certifiers in deciding who and what to test. (Remember, there’s an inherent conflict of interest because they are overseeing their paid “clients.”) The committee tabled any pending resolutions to be further deliberated during the fall meeting.
eCommerce Organic Labeling Requirements
Even though it was conceded that formal written comments and public oral testimony supported the OrganicEye recommendation for rulemaking, carrying the weight of law, the full NOSB passed the subcommittee recommendation instructing the NOP to draft a “guidance” document outlining how online retailers should comply with labeling requirements. Guidance itself is not legally actionable if it is not followed.
Our suggestion was to simplify the entire approach by stating that the required certification identification on all organic packaging should either be made readable online by enlarging the photo of packaging on a webpage or the required language should be easily accessible elsewhere on the page.
Board dialogue focused on preventing fraud and suggested that consumers could file formal complaints with the USDA if they thought something wasn’t appropriate in retailing. However, they totally missed the fact that shoppers want this information not just as fraud detection but to be fully educated on the products they are buying. Organic eaters are label readers!
NOSB Day Three Update
The day started off with presentations from the Materials Subcommittee establishing research priorities going forward that they hoped academics would address.
Mutagenesis
Discussion then turned to whether classic mutagenesis — referred to as induced — was prohibited like other forms of genetic engineering or manipulation.
Most of the Q&A had to do with the harsh chemicals and radiation involved in “shocking” the genome of particular plants to create unique seed traits.
Everyone seemed to miss the fact that many organic stakeholders are not specifically concerned with methodology but rather with outcome: They don’t want their food supply to be contaminated with genetically unique cultivars that have never existed on the planet before and, thus, are experimental in terms of being a part of the human diet.
The meeting then shifted to the Policy Development Subcommittee with discussions related to updating the NOSB Policy and Procedure Manual (PPM) and procedures at sunset for developing restricted annotations.
The last subcommittee to make their presentations was the Handling Subcommittee, with new materials as well as those that will receive final votes for retention on the national list when they sunset in the fall. Every five years, one of the most controversial materials comes up for review: carrageenan.
Carrageenan
Although the NOSB voted to delist carrageenan during the first Trump administration, its work was overruled by the Secretary of Agriculture. Because it was categorized as a “natural” material at the time, he had the power to do that. However, it is now generally recognized as synthetic because of the processing it goes through, giving the NOSB, statutorily, total discretion on its listed status.
During the introduction of the material, it was noted that a tremendous number of comments from the public recommended delisting once again. However, no specific arguments were presented.
And while it was acknowledged that there are a myriad of different health concerns related to carrageenan, the fact that it’s been categorized as a possible carcinogen was never mentioned.
During the discussion by the board, all the focus was on how effective carrageenan is as a food additive, coagulant, and stabilizer, as well as how it is needed for some processed foods. No discussion whatsoever about the safety of the product took place.
Carrageenan remains the proverbial “poster child” of NOSB and NOP dysfunction. Its inclusion on the list undermines federal law prohibiting dangerous additives from being approved for use in organic food and illustrates the corporate capture by the agribusiness lobby of an advisory panel that was supposed to insulate organic rulemaking from undue industry influence.
Community members will have one more chance to chime in before the final vote in the fall.
Closing Comments
There hasn’t been a NOSB meeting yet that didn’t conclude with a lovefest of board members and USDA staff praising each other for their diligent and collegial work.
It should be noted that the meeting days are shorter, there are longer lunch breaks, and the workload is such that they were done at noon instead of 3 PM, as had been originally delineated in the agenda.
A few years ago, when the now co-CEO of the Organic Trade Association, Tom Chapman, was NOSB chair, the PPM was rewritten to transfer authority for setting the agenda from the NOSB to USDA bureaucrats. They’ve done a good job of making sure some of the controversial issues that the board might’ve taken up don’t see the light of day.
In her closing remarks, Dr. Jennifer Tucker stated that the fall 2026 meeting would be virtual and that going forward it was unlikely that the community would come together in person twice a year as has been standard over the past quarter century.