Organic farming has boomed in recent years, with total sales of organic products — food, bed linens, pillows and clothes — in the United States increasing 83 percent between 2007 and 2012. A primary driver of their success has been the USDA-regulated organic label, which implies to many consumers that these food products are somehow superior.
But that is not what the label actually means. Nor is it true. Nor, arguably, is the label constitutional.
In order to establish a single label that would reflect conformance with a national standard of agricultural production, the 1990 “National Organic Food Production Act,” directed USDA to establish: (1) a national organic production certification program, (2) a label for organically produced agricultural products, (3) a national list of approved and prohibited substances to be included in the organic production standards, and (4) an accreditation program for agents who would certify conformance.
At the release of the final national organic standards in 2000, Secretary of Agriculture Dan Glickman emphasized the fundamental meaninglessness of the designation: “Let me be clear about one thing, the organic label is a marketing tool. It is not a statement about food safety. Nor is ‘organic’ a value judgment about nutrition or quality.”
In this way USDA conferred a valuable stamp of approval on products from USDA-certified producers and made with government-sanctioned processes and procedures that are in no way related to safety, nutrition or quality. Moreover, organic regulations excluded certain modern technologies — such as food irradiation to eliminate insects and microorganisms, and genetic engineering with molecular techniques — that would improve the efficiency of production and the safety and quality of products.
An important unknown was how the new USDA regulation and promotion of organic food practices would affect the environment — exactly the sort of issue that the National Environmental Policy Act dictates must undergo an Environmental Impact Statement. None was ever performed, however, because USDA situated the National Organic Program (NOP) in its Agricultural Marketing Service, which USDA has “categorically exempted” from the EIS requirement because, supposedly, “AMS programs and activities have been found to have no individual or cumulative effect on the human environment.”
Thus, employing circular reasoning, the environmental impacts of the Organic Food Production Act — which was ostensibly designed to boost food production practices that benefit the environment — were not reviewed because USDA assumed organic practices would have no impact on the environment.
However, contrary to USDA’s assumptions, there is ample evidence that organic agriculture can be harmful to the environment. Its substantially lower yields in real-world settings — typically 20-60 percent less than conventional agriculture — are wasteful of water and arable land.
Although synthetic chemical pesticides are generally prohibited, many exceptions are allowed (some of which are listed here) on the basis of “need,” and most “natural” ones, which can be extremely toxic, are permitted.
Are organic foods more healthful? A landmark study by Stanford University researchers analyzed data from 237 studies to determine whether organic foods are safer or healthier than non-organic foods. They concluded that fruits and vegetables that met the criteria for “organic” were on average no more nutritious than their far cheaper conventional counterparts, nor were those foods less likely to be contaminated by pathogenic bacteria like E. coli or Salmonella.
In fact, organic foods are highly susceptible to contamination. Recalls of organic foods in 2015 jumped to seven percent of all food units recalled in 2015, compared to two percent the previous year (and one percent in 2012 and 2013). Organic agriculture accounts for only about one percent of farm acreage.
Perverting the original concept, organic agriculture morphed from a marketing tool into a massive public/private, special-interest bonanza. Every link in the organic production chain benefits, but at the expense of consumers, the environment and taxpayers. Mandatory federal spending on organic agriculture has mushroomed from $20 million in the 2002 Farm Act to more than $160 million in the 2014 Farm Act.
Ironically, the organic label that is the touchstone of the National Organic Program may have now become its Achilles heel. A 2015 U.S. Supreme Court case, Reed v. the Town of Gilbert, strengthens the basis for a challenge to its constitutionality.
That decision calls into question the legality of special labeling to identify foods produced by a particular process unrelated to the health or safety of the protected product. Information required on labels is considered to be “commercial speech,” which must therefore conform to the speech requirements of the First Amendment to the U.S. Constitution. The essence of the Reed case is that special labeling laws are subject to “strict scrutiny,” the most rigorous standard of review for constitutionality. It requires that the government surmount the high hurdles of proving that the labeling furthers a “compelling interest” and also that the requirement is “narrowly tailored” to that interest.
Because the USDA organic designation is based on food production processes and procedures unrelated to quality, health or safety, there is no compelling interest, and it fails strict scrutiny.
A successful challenge to the USDA organic label would provide real benefits to consumers in the form of agricultural innovations, lower prices, greater transparency in the marketplace and enhanced protection of the natural environment.
• Henry I. Miller, a physician, is a fellow at Stanford University’s Hoover Institution. He was founding director of the Office of Biotechnology at the Food and Drug Administration. John J. Cohrssen, a lawyer, served in a number of government posts in the executive and legislative branches of the federal government.