ORGANIC DOUBLE-CROSSED: The New Animal Welfare Rule, Fall 2023 NOSB Meeting, and “Continuous Improvement”

Young pullets in a certified organic operation — confined without outdoor access or windows. Currently illegal (although condoned by the USDA) but made legal under the new regulations.

LA FARGE, Wis. — Listening to stakeholder testimony before the National Organic Standards Board (NOSB), watching the NOSB members voting on behalf of corporate agribusiness interests, and reading emails from numerous nonprofits naïvely applauding the handiwork of the USDA and the corrupting influence of the corporate lobby, the Organic Trade Association, has left me feeling profoundly concerned about the direction in which organics is headed. And, frankly, rather nauseated by it all.

The Foxes and Wolves, and Their Naïve Allies, Are All Applauding the New Rules Regarding Organic Hen Houses

For most of the last two decades, I have been fighting against livestock factories producing “organic” eggs. Some of these have confined up to 200,000 birds in a single building. The current law is perfectly clear: All organic livestock must have access to the outdoors. But the USDA refused to enforce the law and instead suggested better rulemaking was necessary — and then they burned up years in the process. 

You may have received emails from other nonprofits claiming the new rules, known collectively as the Organic Livestock and Poultry Standards (OLPS), are a “Major Win” representing “Continuous Improvement” in organic rulemaking. This is what they’re cheering about:

 Even though large industrial farms slaughter all their laying hens after one year, and meat birds might be confined to a broiler house for only six weeks, they are giving these large agribusinesses five years to comply with the new (rather anemic) standards. Five years! These giant conventional egg companies, and meat behemoths like Tyson and Purdue, currently control most of the market.

 Based on weight, the indoor rules require approximately one square foot per chicken on multiple-tier aviary systems. This means they will have to somehow walk hundreds of feet (vertically and horizontally) over the top of other birds to reach a small door — ensuring that most will never get outside.

 The OLPS also only requires approximately one square foot indoors for broiler (meat) chickens.

 This indoor space can include nesting boxes and “porches” where chickens would have to exit through small doors to reach areas with concrete floors, no feed, no water, and no reason for birds to utilize the space. With these caveats, these poor creatures will effectively have less than one square foot to enjoy their entire (disrespected) lives.

 In terms of outdoor space, the new rule only provides for about two square feet for laying hens and one square foot for broilers. One of the domestic name brands, Organic Valley, currently requires five square feet. To qualify as organic in the European Union, organic farmers need to provide 43 square feet. And highly regarded animal welfare labels in the US (qualifying farms as “pastured poultry”) require 108 square feet. But the USDA and their allies would like us to applaud a measly one to two square feet!

 And what about that outdoor space? The first 25% adjacent to the building can be concrete or gravel. How many birds, especially in large operations, are going pass through a “porch” with a wood or concrete floor and then walk past many square feet of an undesirable and unnatural environment to reach a space with vegetation where they can exhibit their natural instinctive behaviors (foraging, dust bathing, eating insects, and enjoying a rich chicken-life) as has been historically required by organic standards?

 Additionally, all those anemic standards come into play only after the birds are old enough. Under these “humane” new rules, young laying hens (“pullets”) can legally be entirely confined for the first 16 weeks of their lives. Then, after they are transferred to the large laying houses, they can be locked up for an additional five weeks to “get used to” their nesting boxes. That’s a total of 21 weeks, which amounts to about 30% of their lives on industrial operations (chickens on family farms live longer and happier lives). And after all that confinement, none of the birds know anything about the outdoors. All their food and water is inside. Very few, if any, will ever venture out.

 Broilers can be completely confined for the first four weeks of their lives — and they only live for 5-7 weeks in most industrial settings. That’s 60-80% of their lives confined. By the time they see a little open door, none of these birds are going to go out. I’ve witnessed this for myself when visiting many certified “organic” CAFOs (concentrated animal feeding operations).

Do these new regulations really sound like they will “ensure high animal welfare standards”?

And are they worthy of all the over-the-top hyperbole from the OTA and nonprofit public interest groups who are claiming that “our hard work has paid off” and that we should “welcome, celebrate, and applaud” this “major victory” representing “continuous improvement”? 

Not based on my experience after 35 years in the organic movement and 20 years as an industry watchdog!

How to Find Superior Eggs: An upcoming edition of our video series, Kastel’s Kitchen, will focus on securing the very finest in safe and nutrient-dense eggs. In the meantime, I would encourage you to check out the FAQs at organiceye.org for guidance on resources to access local, organic farm production (almost always the gold standard).

[editor’s cut]

Report: October National Organic Standards Board Meeting
Corporate Agribusiness Interests Dominate the Dialogue

Public Testimony
The USDA switched all public testimony to virtual (on Government Zoom) during the pandemic. One advantage is that it allows stakeholders the opportunity to testify without investing money for travel and lodging. The disadvantage is not having the opportunity to interact with each other.

Despite strong support by NOSB members and stakeholders to shift to hybrid testimony (on Zoom and in person), the National Organic Program ignored these sentiments and has, so far, continued to keep all public comments virtual.

The first day of testimony, October 17, was dominated by a group of Montana farmers, maybe 10-12, all seemingly influenced by the same script, appealing the USDA to get more involved in the promotion and marketing of organic food. We don’t know what the common denominator might’ve been, but the current NOSB chairman is a past OTA Farmer of the Year award recipient from Montana and one of the farmers testifying, a longtime member of a Montana organic farming association board of directors, also currently sits on the OTA board.

I, along with Bruce Kaser, an OrganicEye farmer-member from Oregon, testified regarding the recently filed lawsuit attempting to hold the USDA accountable for the illegal free-for-all in uninspected organic imports coming from “grower groups” (which are often nothing more than large agribusinesses self-inspecting their suppliers).

As usual, there was a great deal of testimony regarding synthetic/nonorganic materials for retention on the National List. And there was very compelling testimony regarding the need for the NOSB to fulfill their statutory responsibility in reviewing all synthetic inputs for safety. For years, the synthetic “inert” ingredients in botanically-based pesticides approved for organic agriculture have gone unreviewed. Dr. Terry Shistar (Beyond Pesticides) deserves credit for her decades-long efforts to bring this important issue the public attention it deserves.

On the second day of testimony, October 19, the emphasis shifted to import fraud. A number of farmers from the Plain States and Midwest testified that they could not compete with fraudulent imports and appealed for stricter oversight and testing. It was disheartening and difficult to listen to their first-hand experiences because I have been involved in trying to address this problem for 20 years. For most of those two decades, USDA political appointees, bureaucrats, and the lobbyists at the OTA have been assuring the public that the regulatory oversight was bulletproof. That was until my work with the Washington Post provided indisputable proof of malfeasance and evidence of a number of large-scale domestic scams that were subsequently prosecuted by the Justice Department.

NOSB Meeting: October 24-26
In addition to the semiannual report from NOP director, Dr. Jennifer Tucker, there were presentations on the millions of taxpayer dollars being invested in supporting organic transition (although how the new farmers will be able to compete with fraud and the flood of imports, as well as how their entry into the organic marketplace will impact existing certified organic farmers, went unaddressed). There was also an extended discussion exploring how organic farmers are disadvantaged in securing fair treatment in terms of crop insurance.

Since Thomas Vilsack’s first stint as USDA Secretary during the Obama administration, the format of the meetings and responsibilities of the NOSB have become dominated by “Sunset” reviews of synthetics approved for use in organic and decisions regarding newly petitioned materials. The NOSB no longer has control of their own agenda and work plan, which mostly prohibits them from working on the most controversial issues in the industry. [Note: the loss of power by the NOSB was orchestrated by the then NOSB chair, Tom Chapman, a Clif Bar executive at the time, who now serves as the CEO of the Organic Trade Association]

Here are a couple of meeting highlights:

Biologicals-Vaccines 
Although it was publicly discussed and has now become common knowledge that many of the vaccines being used in livestock are genetically engineered (as allowed by a loophole in the USDA standards), the board voted to approve them as a group, without any safety reviews — despite the federal requirement that these materials be evaluated for both safety and essentiality. The question of whether vaccines, genetically engineered are not, are “essential” (a prerequisite in the law for their approval) in anything other than unhealthy factory farm conditions was never broached. When biologicals were discussed, there was not one question from anyone on the board. No balancing information was presented. Not one word.

Even though the NOSB had previously voted to only allow GMO vaccines when traditionally produced biologicals are not commercially available, the USDA has not responded and Dr. Tucker went on the record saying that this recommendation was “not a priority.”

The relisting of this class of drugs passed unanimously. It should be noted that OrganicEye has requested the USDA hold a public meeting on the subject and has threatened legal action if this goes unaddressed.

Plastic Mulch and Covers
There was a wide-ranging discussion of the use of plastics, including their impact on the waste stream and possible contamination of soil/plant tissues. This also included appeals to approve “biodegradable” plastic mulch that would break down instead of having to be landfilled (despite having the potential for even more troubling general environmental and soil contamination, including microplastics and their associated human health impacts).

There was a great deal of testimony about how important the use of plastic is for various crops. These are mostly economic arguments. Some are valid. But that doesn’t change the environmental or potential health effects.

There are some crops that have demonstrable advantages when grown on plastic (for weed control, heating the soil, and isolation from fungal spores). Others could be easily grown with organic mulches (like straw) which can be incorporated to build soil tilth, or living mulches, which can suppress weed growth and then be incorporated into the soil to build additional fertility (for example, a legume like white clover provides a nitrogen source— often referred to as “living mulch” or “green manures”). There was never any discussion of the “essentiality” of plastic mulches for various crops or the possibility of limiting its use to certain cultivars.

Continuous Improvement and Accountability in Organic Standards Act (CIAO): OTA Lobbyists Lead Nonprofit Groups Down the Road to Hell

Everyone in the organic movement has been frustrated over the past 30+ years by the glacial pace of the USDA in acting on proposed improvements to the federal organic standards, even after extensive community-wide debate and formal recommendations by the NOSB.

Under the Clinton and Bush administrations, it took 12 years for the regulations to go into effect after the passage of the Organic Foods Production Act of 1990 (OFPA). The USDA purposely dragged its feet at every opportunity. Even back when the legislation was being debated in the 1980s, the USDA testified in Congress that they didn’t want to have anything to do with organic oversight. The agency, under both Democratic and Republican administrations, has always been beholden to corporate agribusinesses and agrochemical and biotechnology interests that, initially, were not interested in organic competing with the food they produced. [Note: Secretary Vilsack is a former Biotechnology Governor of the Year.]

However, things started changing 20 years ago. Now most of the major brands in the organic arena are controlled by the same Big Food companies to which we were trying to create an alternative.

When OFPA passed, we flew under the radar screen and organic food was largely ignored by agribusiness lobbyists. That will never happen again!

After the original regulations went into effect in 2002, it took a decade to pass a (theoretically) stronger “pasture rule” (claimed by the agency to be necessary after the USDA refused to enforce the initial rules). Even though the previous regulations clearly made pasture mandatory for ruminants, under the new rules the USDA has shut down none of the factory dairies gaming the system. It was all a dog and pony show, creating years of delay so the conventional livestock industry could take over organics.

The same thing for the confinement of chickens. We spent years debating to come up with better rules and all they have to offer is the pablum outlined above (despite the existing rules having mandated outdoor access all along). You can understand why OrganicEye is not celebrating.

And now, in an effort to speed things up, the lobbyists at the OTA have orchestrated a juggernaut to back a bill called the Continuous Improvement and Accountability in Organic Standards Act (CIAO) — sadly with the support of many naïve nonprofits.

What could possibly go wrong?

The idea is to compress all pending regulatory changes, other than the review of synthetic/nonorganic materials, into omnibus rulemaking every five years. That means lean nonprofits, volunteers, and other organic stakeholders will have to go toe to toe with professional lobbyists and lawyers representing corporate interests. And do so in a compressed timeframe.

And these regulatory changes will continue to be filtered through the NOSB. At this time, the OTA has succeeded in stacking the vast majority of seats on the NOSB with individuals who either have a direct membership with the lobby group or who work for an agribusiness that is a member. Do you think the perspectives of farmers and consumers are going to carry the same weight as agribusiness executives?

OrganicEye will not be joining other public interest groups, many receiving funding from corporate interests and — I wish I was making this up — directly from the USDA, in supporting this legislative boondoggle. 

Mark Kastel, Executive Director of OrganicEye, has spent 35 years involved in the organic movement as a farmer, consultant to the industry, and, for the past two decades, its most prominent industry watchdog.


Epilogue — Connecting the Dots:

The dynamic described above is commonly referred to in Washington as “regulatory capture.”

As I’ve said in speeches over the past 20 years that I have acted as an organic industry watchdog:

“Why should organics be different than any other regulatory scheme in Washington? Because we said so!”

I admit we were foolish to be so trusting when I and others in the organic farming community lobbied Congress in the 1980s for the passage of the Organic Foods Production Act, inviting the USDA to rigorously oversee the budding organic industry. We thought that a law and a unique public-private partnership, with a statutorily diverse buffer (the National Organic Standards Board), would protect organics as a true alternative to industrially produced food that was damaging to the environment, disrespectful to animals, and an endangerment to human health.

At the time, we never dreamed that the industry would have the meteoric growth it has shown, attracting vast amounts of corporate agribusiness investment and leading to artificially inflated profit margins.

Lobbyists at (or working with) the Organic Trade Association have now filled the majority of seats on the NOSB with their friends and the focus seems to have shifted to maximizing potential profit by reducing the standards to the bare minimum to qualify for the organic label (and changing the law when necessary to make it even easier).

What can we in the organic community do?

1. If you are a farmer or an ethical organic businessperson, be sure to choose a certifier that doesn’t compromise our values and violate the spirit and letter of the law — even if it’s allowed by the USDA. That means looking for a certifier who doesn’t certify hydroponics or livestock factories. And one who isn’t a member of any organization that is working to weaken the integrity of the organic label. 
   
   
2. If you are a consumer, choose to patronize truly organic brands and purchase authentic organic products from your local foodshed whenever possible (please see organiceye.org for guidance).
   
   
3. Support public interest groups that truly represent and share your values rather than those partnering with the lobbyists at the OTA or who are cozy with the politicians running the USDA National Organic Program.
   
   
4. Stay tuned for additional information from OrganicEye on ways to create marketplace and political pressure to save what we have worked together to create: a true organic alternative to support the health of our families and the livelihoods of the farmers and businesses who provide the best organic food and products.