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Ninth Circuit:
Vegetables Not Grown in Soil May Be Labeled ‘Organic’
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has rejected the bid by a non-profit advocacy organization and others to require the that crops labeled as “organic” be cultivated in soil, affirming a District Court decision granting summary judgment to the department.
Center for Food Safety, along with eight other entities, asked the District Court for the Northern District of California to order the U.S. Department of Agriculture (“USDA”) to vacate its decision denying a petition seeking a ban on the use of the “organic” label on crops such as lettuce, tomatoes, and strawberries that are grown “hydroponically”—without soil. Chief Judge Richard Seeborg held that it was not clear whether the Organic Foods Production Act (“OFPA”) contemplates such a ban, saying the positions of the two sides were “equally persuasive,” and cited the highly deferential standard of review of administrative decisions.
In a memorandum decision issued Thursday, the Ninth Circuit, too, expressed uncertainty, declaring:
“[W]e conclude that the OFPA does not clearly require USDA to issue the requested rule….If the OFPA’s text clearly barred hydroponic production, we would be required to enforce it according to its terms and set aside USDA’s interpretation….But no part of the statute clearly precludes organic certification of crops grown hydroponically.”
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—CN In this 2020 file photo, a hydroponic crop is seen. |
Appellants’ View
Viewing it differently, Center for Food Safety, a national group with offices in the District of Columbia and San Francisco, said in its brief in the Ninth Circuit:
“The Organic Foods Production Act (OFPA)’s language is plain and mandatory: organic crop producers ‘shall...foster soil fertility, primarily through the management ot the organic content ot the soil through proper tillage, crop rotation, and manuring.’…In contrast, hydroponic production systems operate in indoor warehouses, using prepared mineral nutrient solutions, not soil…, and more generally ‘without the need tor any biology.’…Thus, as one might imagine, and by Appellee USDA’s own admissions, hydroponic systems simply cannot ‘foster soil fertility.’ ”
It charged:
“Instead oi addressing how hydroponic systems might ‘foster soil fertility’ as required, USDA created, for the first time, an extra-statutory exemption tor hydroponic production. Under this exemption, USDA claimed OFPA’s mandatory statutory soil management practices only selectively apply to some organic crop farmers, namely those ‘that do use soil,’ without citing any statutory basis.”
Government’s Position
The USDA, in denying the rulemaking petition, explained that the provisions in the OFPA that “use the word ‘soil’ and impose certain requirements to maintain or improve soil quality” do not “require that all organic production occur in a soil-based environment” but, rather, “are applicable to production systems that do use soil.”
It pointed out:
“It is undisputed that nothing in the statute expressly addresses whether crops grown hydroponically may be certified as organic. It is also undisputed that, if hydroponic crop producers engage in any of the expressly prohibited practices, they may not be certified as organic.”
There was no reason to suppose, it contended, that Congress intended to impose a ban on labeling as “organic” crops grown in chemical nutrients in a “roundabout way” by making reference to soil fertility,” asserting:
“[A]ny suggestion that Congress meant to forbid the organic certification of hydroponic crop production by not specifically addressing that type of crop production is foreclosed by Congress’s express provision that any ‘production or handling practice... shall be permitted’ unless it is ‘prohibited or othenvise restricted under’ the Act or it ‘would be inconsistent with the applicable organic certification program.’ ”
The case is Center for Food Safety v. Vilsack, 21-15883.
Comprising the three-judge pabel deciding the appeal were Circuit Judges Susan P. Graber and John B. Owens, along with Judge M. Miller Baker of the United States Court of International Trade, sitting by designation.
Summary Judgment
Both sides moved for summary judgmnent in the District Court. In its motion, Center for Food Safety provided this background:
“OFPA was created out of the organic farming movement in the United States. This movement, developed in the early 1940s, was itself a response to the industrial agricultural revolution which promoted farming with chemicals, under which farmers cultivated crops using synthetic fertilizers, and not nutrients derived naturally from the soil….Consequently, the pioneers of organic farming techniques ‘intently focused on the life in the soil.’…At the heart of organic farming is ‘the sound management of soil biology and ecology.’ ”
The website Earth.com provides this information on hydroponic farming:
“Hydroponics seems futuristic, but in some ways, hydroponics is quite ancient. Photosynthetic algae and bacteria predate terrestrial plants as the first plants as we know them.
“These early plants grew hydroponically in nature, bobbing in the nutrient stew of the ocean as their growing medium. There is evidence of crops being grown in ancient Egypt, Babylon and in floating gardens in China thousands of years ago. The Aztec empire fostered floating rafts of gardens on lakes.”
It explains:
“The basics of hydroponics are simple – instead of growing a plant in soil, the roots of the plant are immersed in an oxygen and nutrient rich water.”
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