by Roger Blobaum · Inside Organics · Sept/Oct 2008
The authority Congress gave the National Organic Standards Board (NOSB) to help define organic and guarantee organic integrity is being seriously eroded by National Organic Program (NOP) actions involving approval of materials for the National List of substances allowed in organic production.
Worse yet the NOSB, which was mandated by Congress to evaluate these materials and make recommendations to the Secretary of Agriculture, has failed to challenge the NOP’s recent actions and is caving in to pressure to go along with possibly unlawful changes. This has led to suggestions that the entire substances approval process is breaking down and that a moratorium on additions to the National List should be imposed until the National List approval system is fixed.
Although National List issues have been troubling since the Organic Foods Production Act was amended in response to a recent court decision, they were dramatized at the last NOSB meeting in Baltimore during a discussion of when technical advisory panel (TAP) reviews should be done and who should do them. A list of 25 new petitioned materials to be added to the National List, an unusually large number, were on the meeting agenda for review.
The TAP reviews, which have been contracted out to the Organic Materials Research Institute (OMRI) and several universities and nonprofit organizations, provide NOP-funded outside scientific reviews of petitioned substances. The law states that TAP review panels should include agronomists, entomologists, toxicologists, and others with expertise needed to evaluate each petitioned material.
Reviews Apply ‘Do No Harm’ Criteria
Criteria considered by TAP review panels include whether the material has an adverse impact on human health, whether it is compatible with a system of sustainable agriculture, whether the toxicity and mode of action of the substance and its breakdown products persists in the environment, and whether it has an adverse impact on biological and chemical interactions in agroecosystems.
These legally required contracted reviews have not always turned out well. Concern has been expressed for five years or more about incomplete or inadequate TAP reviews that have delayed petitioned substance decisions by the NOSB. There also has been disagreement over how TAP contractors are selected and whether the NOSB has a right to participate in making these decisions.
Public Witnesses Oppose Change
The NOP told the Baltimore meeting that the government could save time and money by having the NOSB, rather than outside contracted experts, do TAP reviews. Although public witnesses urged the NOSB to oppose this change and other government actions that appeared to be undermining its National List authority, the NOSB declined to challenge the NOP’s position. It ignored the public comments and agreed that its Policy Committee would develop a procedure for deciding which materials petitions would require an “outside” TAP review.
Public witnesses opposing the NOP’s new TAP review position included Emily Brown Rosen, a nationally-recognized organic materials expert, who commented on behalf of Pennsylvania Certified Organic, an NOP-accredited certifier. She contended having the NOSB do TAP reviews was not what Congress intended and that it also failed to meet expectations of the organic community.
“The NOSB’s work requires expertise on hundreds of different subjects and, in order for you to do a professional job, you deserve technical support,” she told NOSB members during a public comment period. “You have the authority to refuse to evaluate materials when there is no credible TAP review, and you should preserve that authority.”
A statement submitted by the National Organic Coalition (NOC) called for a moratorium on National List decisions until the NOP follows the law regarding the role of the NOSB and clears up several materials review issues. These include the NOP’s failure to respond to public comments about 38 non-organic agricultural substances that recently were allowed in organic food, most of them without TAP reviews, on the grounds they are commercially available in organic form or are extremely difficult to source. The statement also called on the NOSB to clarify the definition of “synthetic,” a fundamental criterion for inclusion on the National List.
NOC’s written statement acknowledged that the NOP and the NOSB are under industry pressure to move faster in making National List decisions. “We respect and admire the efforts carried out by the NOSB to prevent disruption of the organic industry,” it said. “However, without independent objective TAP reviews, the NOSB cannot make an informed recommendation on materials petitioned for inclusion on the National List. In fact it may be illegal to do so.” Liana Hoodes, speaking for NOC during the comment period, told the NOSB that it is important that all the steps set out in the law are followed to assure that the NOSB process demonstrates integrity and consistency in making its decisions. The NOC statement was signed by 11 national and regional consumer, organic farming, and other organizations and institutions.
The controversy over TAP reviews may appear to some as little more than a “tempest in a teapot” involving industry pressure, NOP budget woes, and materials most consumers have never heard of. But a look back to 1990 when the Organic Foods Production Act was enacted shows how much is at stake when NOSB’s statutory authority in the materials review process is threatened or eroded and how critical it is to bring the entire review process into compliance with the law.
The NOSB was established in response to widely-shared apprehension in 1990 about turning over responsibility for a national organic guarantee from the private sector to regulation by USDA. It reflected deep distrust of the department, which had joined the House Agriculture Committee in waging a bitter unsuccessful fight against the Organic Foods Production Act. If an institution like the NOSB with some statutory authority had not been included, this legislation would never have made it through Congress.
USDA Challenges to NOSB Authority Failed Earlier
USDA on two occasions in the past has been unsuccessful in challenging the NOSB’s authority to decide whether or not to recommend to the Secretary of Agriculture that a material be added to the National List. The most serious challenge came in 1997 when USDA’s first proposed rule rejected many NOSB recommendations, including its initial National List of Approved and Prohibited Substances. USDA’s proposed rule significantly changed many of the NOSB’s recommended practices, directly altered its initial National List, removed its annotations and restrictions on use that accompanied the National List, and attempted to undermine the NOSB’s future governance of the National List process.
The final rule restored the NOSB’s authority, seeming to settle once and for all the NOSB’s authority over allowed and prohibited materials and the main elements of the NOSB’s overall participation in the public-private partnership mandated by Congress. These attempts, unlike what is happening now, did not challenge the provision requiring the NOSB to convene TAP reviews to evaluate petitioned materials
One question raised at the Baltimore meeting is why the NOSB, which has official meetings several times a year that last three or four days, would consider doing TAP reviews or would have time to do them. This heavy work schedule, plus a steady load of committee work between meetings, makes serving on the NOSB a challenging part-time volunteer position.
Another question raised is whether NOSB members, even if they volunteer extra time, have the scientific expertise to do TAP reviews. Four organic farmers, a retailer, two handlers/processors, one scientist, three consumer advocates, three environmentalists, and a certifier representative serve on the current board. But only three would appear to have the scientific expertise needed to qualify as a TAP panel member. One member has worked as an agronomist, one is an ecologist, and one is a veterinarian.
Finally, regarding budget problems cited by the NOP, there have been reports that USDA has diverted $400,000 initially provided for TAP reviews to other program areas. Since this became known, the NOP’s director has announced that $200,000 in funding for the coming year will be used for TAP reviews. This falls short of what is needed.
The new farm bill has authorized large yearly increases in the NOP’s budget and the budget for the coming year is expected to double. In raising the authorization levels, Congress stated it is aware of concerns “raised by numerous organic agriculture interests about the level of resources devoted to the NOP.” USDA, the new farm bill language indicated, should start asking Congress to appropriate enough money to enable the NOP to get the job done.
The NOP and USDA, whether in a Democratic or Republican administration, can’t seem to resist the temptation to try to undermine or eliminate the NOSB’s statutory authority to help define organic and to maintain organic integrity. It is time for USDA to request the money needed to fund TAP reviews and to do whatever else is necessary to come into compliance with all legal provisions relating to the National List process.
by Roger Blobaum
This article was first printed in the Sept/Oct 2008 issue of the Organic Broadcaster, published by the Midwest Organic and Sustainable Education Service