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Crop Busters

Organic farmers got the government to protect them. Now who will protect them from the government?

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By Harold Henderson

John Peterson runs one of the biggest community-supported farms in the country. All summer and fall he ships fresh organic produce from near the Wisconsin border to 600 member families around Chicago. The members in turn support his farm with prepaid memberships, visits, friendship, and help in the fields. This year 20 of them teamed up to buy another 38 acres next door, more than doubling the farm's size.

Since 1989 Peterson, who's also a writer, has followed both the negative precepts of organic farming (use no synthetic pesticides or fertilizers) and the positive ones (enhance natural processes rather than degrade them). He abides by the recommendations of the national Organic Crop Improvement Association. For a time he was certified by its formal organic certification program, through which members are regularly inspected for compliance with detailed organic standards. But he quit the program after a run-in with a surly and suspicious inspector. Now he says he's just not comfortable with one-size-fits-all standards. "You can't legislate how a plant grows, and an organic farm is analogous to a growing plant."

Peterson's farm is called Angelic Organics--but maybe not for long. Within a few months he'll be subject to a certification program that's harder to quit. The U.S. Department of Agriculture is now rewriting regulations that will likely require him to pay hundreds of dollars and spend hours on paperwork to prove his produce is organic. Worried about what regulations and fees the USDA will impose, Peterson says, "We might not be able to keep our name."

Ironically, Angelic Organics is now in danger because eight years ago the organic movement won a great victory: its leaders persuaded Congress to pass Title XVI of the 1990 farm bill, now better known as the Organic Foods Production Act (OFPA). That law says that anybody who sells more than $5,000 of farm products a year can call them organic only if the USDA agrees. Violators can be fined up to $10,000. The law hasn't gone into effect because the USDA hasn't yet adopted regulations that would fill in the bill's sketchy outline of what counts as organic and what doesn't.

For decades the American agricultural establishment had dismissed organic growers as cranks. With the passage of the OFPA, the "cranks" finally wormed their way into the establishment. But official recognition came at a high price. The organic movement was forced to narrow its claims and cede legal control of the term "organic" to the very agency that has been serving and protecting giant chemical-intensive agribusinesses for generations.

The USDA took its time in drawing up the regulations needed to enforce the law. When it finally did propose a set of regulations last December, they were extraordinarily permissive--leaving the door open for, among other things, urban sewage sludge and irradiated foods to be called organic. During a four-month public-comment period, a quarter million organic farmers and consumers vented their outrage at the USDA. In May the department withdrew the proposed regulations, and now a new version is in the works.

John Peterson shared that outrage, but his concern goes deeper. Once regulations are finally in place, Angelic Organics and hundreds of operations like it around the country will have to make a difficult choice. Either they will divert scarce time and money from growing organic food in order to do the paperwork and pay the certification fees, or they will stop using the O word under penalty of law.

"It's a great irony," says Peterson. "To farm in a positive way, the farmer must spend considerable money and time to prove that he/she is farming in a positive way, while the farmers who unleash millions of pounds of chemicals on the environment each year don't have to prove anything to anybody."

How did it come to this? The organic idea, a peculiarly 20th-century fusion of tradition and experiment, germinated around 1905. That year a 32-year-old, Cambridge-educated man, Albert Howard, began work as Imperial Economic Botanist in the British colony of India. Howard soon observed that in some ways the native peasants got better results than the government farms. Two decades of applied research confirmed that perception. Traditional agriculturists took better care of the soil than modern farmers. In today's lingo, they recycled and they thought holistically.

Modern farmers disregard first principles, said Howard. They take more from the soil and give less back to it than their "primitive" counterparts. "Growth has been speeded up, but nothing has been done to accelerate decay," he wrote. As a result, "the soils of the world are either being worn out and left in ruins, or are slowly being squandered." Farmers should follow nature's example--the forest--and return wastes to the soil, he contended. "At least half the illnesses of mankind will disappear once our food supplies are raised from fertile soil and consumed in fresh condition."

In 1940 Howard--by then retired--published An Agricultural Testament, the book that inspired J.I. Rodale to buy a Pennsylvania farm and begin publishing Organic Farming and Gardening magazine in May 1942. (Under the somewhat less ambitious name of Organic Gardening, it's still going strong.) Like Howard, Rodale believed that replenishing the soil with properly prepared wastes would keep plants, animals, and people healthy, leaving little need for artificial chemicals or drugs. (Research hasn't confirmed this, but it also hasn't looked closely at the risks inherent in conventional farming--pollution, antibiotic resistance, and reliance on a very small number of crop varieties.)

With the end of World War II and the advent of DDT and its organochlorine cousins, mainstream farming turned decisively in a nonorganic direction, relying on pesticides, manufactured nitrogen fertilizer, routine use of antibiotics, and intensive crop breeding. Crop yields skyrocketed, making Howard's fears of soil depletion seem passe.

Organic farmers held out on the margins. They insisted that the life of the soil was important. They either put up with insect pests or sought out nonpesticide controls. They hoed or cultivated weeds instead of spraying them with herbicides. They planted cover crops and plowed them under or spread livestock manure instead of piling up artificial fertilizers on the soil. They preferred smaller, lighter farm equipment because it didn't pack down the soil as much. They composted crop residues and locally available nutrient sources (seaweed, sawdust, cannery wastes) and applied them to the soil. All this is hard work. And little of it can be standardized, even from one field to the next.

In 1951 Rodale published the first directory of places to buy organic foods. In 1959 he compiled his magazine articles into the first edition of the Encyclopedia of Organic Gardening. (He also passed along a share of odd food fads, including a series of articles entitled "Don't Eat Bread.") In the late 1960s and early 1970s an influx of young middle-class nature lovers gave the organic movement new energy and new ideas.

Organic growers are conservative in a much more profound sense than Newt Gingrich or Peter Fitzgerald. The environmental movement has given them a more coherent way to explain why they're conservative. Frederick Kirschenmann, a North Dakota organic farmer (3,100 acres in wheat, sunflowers, buckwheat, millet, rye, flax, canola, soybeans, and livestock) who also runs an organic certification service and holds a PhD in historical theology from the University of Chicago, puts it this way: "An organic production system is one in which the farmer carefully integrates the various parts of the farm organism (crops, livestock, wild species, nutrient cycles, etc.) into a well-

balanced ecologically integrated whole." The ecological health of the system in turn "enables the organic farmer to produce nutritious food without the use of industrial fertilizers and pesticides. Consequently organic production is much less about what the producer does not do (not using synthetic inputs) as it is about what he does do (developing an ecologically elegant system)."

As you might expect, organic growers are reluctant to tamper with such a system. They assume the worst until new stuff is proven harmless. In other words, they adhere to what environmentalists call the precautionary principle. "Any materials used in the production or processing of organic food must be proven safe," says Kirschenmann. By "proven" he means demonstrated in the field, over time. Mainstream agriculture, business, and government--the USDA included--have a more happy-go-lucky attitude.

"The day is not far off," J.I. Rodale proclaimed in 1971, "when the home gardener who uses chemical fertilizers will be a rarity." We're still waiting for that day, but the movement did begin to outgrow his magazine. Growers started selling organic foods at farmers' markets, health-food stores, and food co-ops. They made arrangements to inspect each other and certify that members of their group were upholding agreed-on standards of organic practice. Gradually these informal certification programs became larger, better organized, and more professional. Organic food sales hit $178 million in 1980. Four years later the Organic Food Production Association of North America (now the Organic Trade Association) was organized.

What had been a haven for oddballs was becoming a niche market. It was also an upscale market--it had to be. Growing food organically is more work than growing it conventionally, so an organic carrot must command a higher price to be worth growing. But what shopper can tell how a carrot was grown by looking at it? Any group of customers willing to pay extra for an invisible quality like organicness will inevitably attract con artists. "As 'organic' started to become a popular and marketable idea," Kirschenmann recalls, "we were afraid that unscrupulous entrepreneurs would call anything organic just to get a premium for their products."

That fear was soon realized. The 1989 Alar pesticide scare terrified parents, infuriated apple growers, and changed organic farming "from a movement to an industry," says Organic Trade Association president Katherine DiMatteo. "Organic" in the sense of "chemical-free" sounded good to fearful consumers. In the rush to supply their demand, as DiMatteo delicately puts it, "More organic product was sold than was produced."

A small group of organic activists, Kirschenmann among them, already had been making lobbying trips to Washington, D.C., to try to head off this problem. Now they redoubled their efforts, though they weren't sure exactly what they wanted from Congress. Maybe a simple legal definition of organic would be enough. They certainly didn't want the USDA to drop a wet blanket of bureaucracy on their movement. The goal was clear--get the government to protect them from fraudulent products without giving it much control over the organic industry--but how to achieve it was not. "Instead of trying to work it out ourselves, we copped to the government," says DiMatteo. "I think we were naive."

The activists huddled with Kathleen Merrigan, who worked for Vermont senator Patrick Leahy. Merrigan compiled the numerous existing organic standards and tried to work out a consensus, a heroic job. Some two dozen states and private groups were then defining and certifying organic food. They weren't all equally competent, and they didn't all agree on the fine points. "New Hampshire and Texas require dairy cows to be fed exclusively organic feed," reported the Senate Agriculture Committee in 1990, "while Kansas, Maine, and South Dakota require unmedicated feed and California and Oregon specify time periods during which certain feed must be used." Such variations "lead to consumer confusion and troubled interstate commerce." And they made it hard to sell American organic foods overseas.

It soon became apparent that there could be no such thing as a simple legal definition of organic. There's nothing mystical about organic farming--it's just too open-ended. It's one thing to write a law that says, "Organic equals no atrazine." It's quite another to write a law that decrees the best way to make compost or the optimum green-manure crop, particularly since people keep coming up with new and better approaches. There are many variables when it comes to the positive precepts of organic farming, and, given widely varying soils and climates, "ecological elegance" must take different forms in different places. "It's very site-specific," says Kirschenmann, sounding like John Peterson. "To specify what you should do on a national basis would get very hard." And so it came to pass that the Organic Foods Production Act had to emphasize the easily grasped "thou shalt not" aspects of organics, rather than the more important and sophisticated positive approaches.

This was only the first departure that the organic advocates had to make from their ideal. "Thou shalt not use pesticides" made it into the law, but its logical foundation--the precautionary principle--did not. Worse yet, to give the bill a chance, organic advocates also had to mute their own safety claims. Most people grow and buy organic because they think it's safer and healthier than conventionally grown food. Congress and the USDA would never even hint that they might be right, since such a statement would be seen as a serious attack on mainstream agriculture.

This past spring's protest over the USDA's proposed regulations obscured these underlying weaknesses in the law. Before the first bureaucrat could write the first regulation, the Organic Foods Production Act had stripped the movement of its rationale, its environmental foundation, and its main selling point.

The Senate Agriculture Committee's 1990 report, which was printed along with the law and reveals what lawmakers intended when they wrote it, states, "American-produced food, whether organically or conventionally grown, is the safest in the world." No organic grower believes that. But to get the law passed they had to pretend to--or at least not hoot with laughter when it was said. The committee report went on: "This legislation [the OFPA] does not attempt to make scientific judgments about whether organically produced food is more healthful, nutritious, or flavorful than conventionally produced food." It's just organic--grown in a certain defined way, for reasons lawmakers did their best to consign to polite silence. Embodied in such a law, the organic movement resembled a set of obscure religious rituals--its meaning unclear, its relative importance unknown.

The OFPA didn't completely miss the point. It did define "organically produced" food as food produced without synthetic chemicals, on land to which no synthetic chemicals had been applied for at least three years, and by people who have an "organic plan" for maintaining soil fertility, manuring, etc. The USDA was given the job of adding regulatory flesh to these legal bones, but it was instructed to rely more on the organic industry than on its own judgment, and to defer to a 15-member National Organic Standards Board appointed by the secretary of agriculture, eight of them organic-industry folks and most of the rest environmental experts and consumer advocates. The law established a "national list" of substances approved and prohibited in organic production. The secretary of agriculture was forbidden to put any synthetic substance on the approved list unless the NOSB had OK'd it.

Yet ultimate power still resided with the government. Under the law, anyone who labels or sells food as organic without USDA approval can be hit with a $10,000 fine. More ambiguously, the law also provides that anyone who says anything that "directly or indirectly" implies organicness is liable to the same punishment.

The bill did seem to offer the organic industry what it had wanted--federal protection with a minimum of federal control. "It wasn't modeled on any existing federal program," says Merrigan. "We envisioned the organic program as a partnership between the public and private sector, not a federal takeover as in other programs." The bill was signed into law November 28, 1990. The regulations were scheduled to appear in September 1992, but George Bush's unenthusiastic Department of Agriculture didn't even appoint anyone to the National Organic Standards Board for more than a year. The supposed partnership continued at the same deliberate pace for the next five years.

Bureaucratic delay notwithstanding, more and more people were buying organic. Organic food sales have grown an astonishing average of 23 percent a year for the past seven years, rising from $630 million in sales in 1990 to more than $4 billion last year, making it by far the fastest-growing segment of the food business. But it's still small--just 1 percent of U.S. food sales and less than 2 percent of U.S. farmland.

You could read these figures as ominous: the organic market is growing fast enough to be worth sneaking into, yet it's still small enough to be vulnerable. And now that "organic" is a matter of federal law, the sneak attack might perhaps be accomplished in a single preemptive strike. But that would be paranoid, right? What could go wrong for the organic industry now that the government was there to protect it? Why should anyone think that the nonorganic farmers and corporations who'd had the USDA all to themselves for generations would want to keep it that way?

On December 16, 1997--more than five years late--the USDA finally issued its proposed organic regulations. In dense legalese, the agency looked through the law and used every gray area (and some not so gray) to shift the definition of "organic" away from the organic movement's understanding and toward the mainstream's:

9 The proposed regulations left open the possibility that organic foods might be preserved by irradiation.

9 They defined compost without limiting what kind of stuff you could use to make it, thus leaving open the possibility that organic vegetables might be fertilized with urban sewage sludge, which is often contaminated with heavy metals and other dubious chemicals.

9 They left open the possibility that organic foods might include organisms whose genes had been modified by recombinant DNA technologies.

9 They allowed organic meat animals to be fed only 80 percent organic feed.

9 In apparent violation of the OFPA, they added substances to the approved "national list" that the National Organic Standards Board hadn't agreed to.

9 The OFPA requires "reasonable" fees to cover the required annual on-site inspections. But the USDA regulations set the fees so high that Wild Oats Markets (the nation's second-largest natural-foods retailer) complained that many of its small local suppliers wouldn't be able to afford to be certified.

9 The USDA announced that it was considering regulating other food labels besides "organic": "produced without synthetic pesticides," "pesticide-free farm," "no drugs or growth hormones used," "raised without antibiotics," "ecologically produced," and "sustainably harvested." The rationale was that such labels might "directly or indirectly" imply that the products were organic--something the OFPA forbids.

This possible inroad on free speech led John Peterson to write an article for the Angelic Organics newsletter describing an Orwellian scene in which he tries to host a tour of the farm without risking a $10,000 federal fine: "I'm showing you our crops and you ask me, 'What kind of fertility program do you have?' I say, 'Well, I can't really say.'

"'How do you control the bugs?' you ask.

"'I can't really say.'

"'Is this an organic farm my kids are running around on?'

"'Can't say.'

"'Well, do you use chemicals on this farm?'

"'If we used them, I could say it, but since we don't...I'm sorry, I didn't mean to say that we don't use...unh...'

"'What can you say, Farmer John?'

"'It's a nice day. Did you enjoy the tour?'"

The details of the proposed regulations were as nonorganic as the big picture. Section 205.2, for instance, would have allowed organic growers to use certain soluble forms of nitrogen fertilizer unless too much of it dissolved in the groundwater. How were you supposed to tell? If nitrate levels in an adjacent water well went up for two years running, then the practice would have to stop.

That's standard operating procedure in conventional agriculture. But it violates the precautionary principle and is a perfect example of how not to farm organically. "Organic agriculture is not a farming system determined by what we can get away with," says Kirschenmann, "but a farming system determined by what we can do to restore the health and vitality of the soil....Under the best of circumstances [Section 205.2] would allow a degrading practice to remain in place for at least two years before sufficient measurable data could be collected to put a stop to it. In the second place, if there is no 'adjacent well' or no complaining neighbor, a certifier could never [compel a farmer to] put a stop to it."

How did we wind up with regulations like this? Former USDA attorney and California food activist Claire Cummings offered one explanation in the "Organic Organizer" newsletter. She called the proposed regulations "a hostile takeover of the success of the organic industry by industrial agriculture interests hoping to cash in on the trend." If the regulations were adopted as written, they would weaken the standard for organic--and they would make sure that nobody who wanted to maintain a higher standard could put up an independent competing label such as "pesticide-free." That might well enable nonorganic farmers to sell many of the fruits of conventional agriculture as organic--and charge an unsuspecting public premium prices for them.

The USDA was under pressure. If, for instance, it allowed genetically modified organisms to be called organic, that standard would differ from other countries' and make it hard to export U.S.-certified organic foods. But if it didn't, there would be hell to pay from the biotechnology lobby. (In 1994 the amount the federal government spent on biotech research was more than the sales of the entire organic industry. And far more acreage is planted with genetically altered crops than organic ones.) According to Leora Broydo, writing in Mother Jones this spring, in a May 1, 1997, USDA memo, agriculture officials fretted that "our trading partners will point to [regulations excluding genetically modified organisms] as evidence of the department's concern about the safety of bioengineered commodities."

Neither this memo, nor the proposed regulations as a whole, would have come as a surprise to economist Alfred Kahn, who wrote The Economics of Regulation (a tome so gray that some footnotes take up an entire page) back in 1971. Kahn pointed out that regulators like the USDA are held responsible for the survival and prosperity of the industries they regulate, which makes them cautious and protective of the industry powers that be (in this case, conventional agriculture). Regulators rarely feel free to take risks on something new (in this case, organic farming). Kahn wrote that a regulatory agency, being "responsible for the continued provision and improvement of services, comes increasingly and understandably to identify the interest of the public with that of the existing companies on whom it must rely to deliver these goods."

In other words, suppose that the Organic Foods Production Act had reflected the organic movement's standards perfectly. And suppose that conventional agribusiness had had no influence on how the USDA wrote the regulations. Even in such an unlikely world, the logic of the regulatory process itself might well have led the USDA to water down the organic regulations.

The organic industry publicized the USDA's proposed rules far and wide, and its customers and sympathizers responded with a resounding "No!" They deluged the USDA with hostile comments and worse publicity all spring. Most objected to opening any regulatory door to the "big three"--irradiation, sludge contaminants, and genetically altered organisms. However, very few commentators objected to the existence of an Organic Foods Production Act. Demeter Association, the organization that certifies biodynamic farmers, did ask the USDA to bow out in favor of "complete self-regulation of the organic industry." And the Competitive Enterprise Institute (a free-market lobbying group that has taken an interest in other labeling issues) agreed with that idea, comparing the USDA's proposed standards to a futile and divisive governmental attempt "to define religious doctrine."

The agency received 275,603 comments, far more than it had ever received on any previous proposal. More than 20,000 objections came via forms provided by the Chicago-based nonprofit organization Sustain, which offers media services to environmental groups--more than even Organic Gardening magazine was able to muster. "We put out more than 50,000 flyers in more than 1,000 stores," says Sustain president Jim Slama, who doubles as publisher of the regional bimonthly Conscious Choice. Sustain provided postcards, and Whole Foods paid the postage. The cards said, "Please rewrite the rules to reflect the holistic approach currently existing in organic production."

The period for public comment ended April 30. On May 8 the USDA withdrew the proposed regulations. "Our task," said agriculture secretary Dan Glickman, "is to stimulate the growth of organic agriculture." He said that the standards would be rewritten to exclude the use of biotechnology, irradiation, and municipal sludge--but only because those practices weren't used by the organic movement, he pluckily insisted, not because they were in any way unsafe.

A victory for people power over money power? Sure. But no one seems to have noticed how revealing it is that the battle had to be fought at all. If Fred Kirschenmann's private certifying organization had announced that it was going to certify sludge-grown carrots as organic, he would have been laughed off the Whole Foods shelves. But when the federal government hinted at the same thing, no amount of laughter could save the word "organic" from the clutches of its new legal custodian. The Organic Foods Production Act had been passed to punish fraud; now it had enabled the government itself to attempt fraud. Only an unprecedented public uprising had stopped it.

"Looking back, you can see that had we been more mature as an industry we could have created a National Organic Standards Board ourselves," says DiMatteo. "But industry self-regulation only works if everyone supports it." And people in the organic business can be cranky, though that may be changing.

In April, as the public-comment period neared its end, 24 private organic certifiers convened in a hotel next to O'Hare and agreed that they should do more than protest bad government policy. They established the Independent Accreditation Steering Committee to explore ways of drawing up industry-wide consensual standards for organic food. "We realized we needed a plan to control our own destiny," says Jim Riddle, an organic farmer and inspector from Winona, Minnesota. "We're not turning our back on the USDA process, but we have no problem racing them to the top." The hope is that the USDA "will be able to recognize the private-sector initiative as an essential component of the private/public partnership which was envisioned by Congress in the Organic Foods Production Act."

Riddle adds, "Ideally, if this [meeting] had happened in 1990 there would have been no need for the law. But that wasn't the climate then. There were significant differences between certifiers in their standards and their professionalism." In his view, eight years of growth--not to mention eight years of disputation with Congress, the USDA, and National Organic Standards Board--have caused the industry to mature.

Kirschenmann is confident that the USDA will produce better regulations this time. The new head of its National Organic Program, Keith Jones, devised the well-regarded Texas organic program when populist Jim Hightower was that state's commissioner of agriculture. "I think we're in a pretty good position," agrees Slama, though Sustain is prudently planning the next round of the watchdog campaign. "I don't think [agribusiness] has anything to gain by screwing us over again. Why would they want to give organics another half-billion dollars of free publicity?"

But even if they're right Angelic Organics is still in trouble. Improved regulations will be little consolation for organic farmers--regulation inherently favors the large, while organic favors the small.

Regulation weighs heaviest on smaller businesses because they have the least time and money to spare from their work, and organic farming is no exception. And if organic regulations drive Angelic Organics and its counterparts out of business, that will be a serious loss. Small diverse farms are the heart of the organic movement--not just for sentimental reasons, and not just because most are small (two-thirds of organic operations sell less than $30,000 a year), but because organic farming is supposed to be responsive to nature, and nature is nothing if not variable.

Agribusiness operates much the same on sand or on loam or on clay. Organic farming does not. That's why it can't be defined as conventional farming minus a few bad chemicals. "There can't be huge fields of [organic] corn with no hedgerows," argued Susan Houghton, who represented the Organic Growers of Michigan at a February public hearing in Ames, Iowa on the proposed regulations. "Big tractors don't belong on organic farms because they compact the soil too much. There cannot be [just] one way to control insects. Inputs may be different from crop to crop or from year to year depending on what happened the previous year."

That's why organic farming couldn't be legally defined in Senator Leahy's office eight years ago. That's why even a better set of regulations is still bad news. Over time--and assuming good intentions all around--they will favor big organic farms and businesses over small ones.

Organic advocates won a great defensive battle this spring. There will be more battles. To win them all, they will have to find a way to have their governmental protection and eat their organic cake too.

Art accompanying story in printed newspaper (not available in this archive): illustration by Mike Werner.

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