USDA Files Reply Brief Supporting Organic Labels on Foods Grown with Hydroponics

On Monday, the United States Secretary of Agriculture, Thomas Vilsack, filed a reply brief in the Ninth Circuit Court of Appeals in a case brought against the United States Department of Agriculture (USDA) by the Center for Food Safety. In the brief Vilsack supports the district court’s opinion that the USDA reasonably concluded the Organic Foods Protection Act does not preclude hydroponic systems for growing crops from being certified as organic.

According to the brief, the Center for Food Safety filed a petition to the USDA in January 2019, requesting that the Department issue regulations excluding hydroponic operations from organic certification and revoke any existing organic certifications previously issued to hydroponic operations. The brief further states that the USDA denied the petition explaining that the National Organic Program has consistently allowed for the certification of hydroponics operations and the certification of hydroponic operations is consistent with the Organic Food Production Act. 

The brief states that after the USDA denied the petition, the Center for Food Safety along with various organic farms, an association of organic farmers and an organic certifier, challenged the USDA’s denial under the Administrative Procedure Act challenge in the Northern District of California. In its opinion granting summary judgment for the Department, the court stated the USDA reasonably concluded that the applicable statutory scheme does not exclude hydroponics from the organic certification. 

Following the Northern District of California’s opinion, the plaintiffs appealed the ruling to the Ninth Circuit. In the appellant’s opening brief they argued that the district court erred by deferring to the USDA’s denial of the appellants’ petition requesting the prohibition of organic certification for hydroponic systems because the language of the Organic Foods Protection Act requires certified organic produce be grown in a manner that “fosters soil fertility.” The brief goes on to state that hydroponic systems are inconsistent with the act because they do not use soil, but mineral nutrient solutions. 

The appellants further argued that the USDA and district court’s decision allowing hydroponic operations to be certified organic, exempt hydroponic operations from the mandatory component of building soil fertility under the Organic Foods Protection Act and weakens the integrity of the USDA Certified Organic Label. 

In the appellee’s reply brief the USDA argues that Organic Foods Protection Act does not require the use of soil and the soil fertility requirement is only imposed on those operations that do use soil when growing crops. The USDA states that since the Organic Foods Protection Act is ambiguous on whether hydroponic systems can receive an organic certification the question is whether Congress implicitly forbade the certification of hydroponic and other soilless crop production operations. Further, the brief reiterates the USDA’s initial finding and the district court’s opinion that there is no reason to conclude and certainly no reason the USDA was required to conclude that congress forbade the organic certification of soilless crop production operations.

The appellants are represented by the Center for Food Safety and the appellee is represented by the Department of Justice.