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Organics Advocates Dig In With Ninth Circuit Appeal Challenging Certification for Hydroponics

The decades-long battle over organic certification of hydroponically grown foods is poised for resolution, with the Ninth Circuit Court of Appeals set to decide an appeal by the Center for Food Safety (CFS) in a case that seeks to block certification of foods not grown in soil.  On May 19, 2021, CFS filed an appeal asking the Ninth Circuit to reverse a district court decision upholding the U.S. Department of Agriculture’s determination that hydroponically grown foods are eligible for certification under the National Organic Program (NOP).  The outcome of the appeal could have significant implications both for hydroponically grown fruits and vegetables and for other soil-less crops, including mushrooms and sprouts.

Certification of hydroponics has divided the organic community almost since the inception of the NOP. CFS, along with the Maine Organic Farmers and Gardeners Association, OneCert, Inc. (an independent certification entity), and six organic food producers, brought the debate to the courts in 2019, after the USDA denied a CFS petition requesting the exclusion of hydroponic agricultural production systems from organic certification.  The petition argued that certification of hydroponics, defined as “systems which incorporate, to some degree, containers that house plant roots in either a liquid solution or various solid substrates,” is inconsistent with the Organic Food Production Act (OFPA) requirements for “ecologically integrated organic production practices,” including the requirement for organic producers to develop farming plans that promote soil health and conserve biodiversity.  The USDA denied the petition on the grounds that the OFPA’s soil-related requirements only apply to crops grown in soil and that hydroponics systems, which may have ecological benefits, should not be categorically excluded from certification.

The CFS coalition filed suit challenging the USDA’s denial, but the District Court for the Northern District of California deferred to the USDA’s interpretation of the OFPA.  Among other things, the court found the USDA had reasonably determined that “OFPA does not compel the prohibition of hydroponics.”

A Ninth Circuit ruling in favor of the USDA could help to settle a decade of uncertainty, while a victory for CFS and its allies would cast doubt on the certification of all soil-less crops, which include hydroponics, mushrooms and sprouts, and aquaponics (combining hydroponic crops with fish farming in complementary production systems).  Currently, there is no formal NOP guidance or policy for certification of soil-less crops, and some certifying agents certify hydroponics as organic, while others decline to do so.  The first federal hearings on the question of hydroponic certification resulted in a 2011 recommendation by the National Organic Standards Board (NOPSB) to deny certification for hydroponics.  The USDA declined to act on the recommendation.  Six years later, the NOSB reversed its position in a split vote, narrowly defeating a proposed recommendation to exclude hydroponics. The CFS petition followed.

Petitioners’ opening brief is due July 19, 2021 in Center for Food Safety et al. v. Vilsak, Case No. 21015883.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XI, Number 166
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About this Author

James Rusk, land use attorney, sheppard mullin
Associate

James Rusk is an associate with the Land Use and Natural Resources practice group in the firm’s San Francisco office.

Areas of Practice

Natural Resources. Mr. Rusk represents residential, commercial and energy developers in natural resources permitting, regulatory compliance and litigation. He focuses on endangered species, wetlands, and storm water issues under federal and state law, in addition to compliance with the National Environmental Policy Act ("NEPA") and California Environmental Quality Act ("CEQA"). Because every project is...

415-774-3232
Robert J. Uram, Real Estate, Environment, attorney, Sheppard Mullin, law firm
Of Counsel

Robert J. Uram is Of Counsel in the Real Estate, Land Use, Natural Resources and Environmental practice group in the firm's San Francisco office.  He is a founding member of the firm's Organic Food and Fiber Law group.

Areas of Practice

Mr. Uram has more than 35 years of experience on wetlands, endangered species, water quality, land use, mining, public lands and Indian Law issues.  He is a nationally recognized expert in the National Environmental Policy Act (NEPA), the Endangered Species Act, and the Clean Water Act...

415-774-3285
Attorney

Louise Dyble is an attorney in the Real Estate, Land Use and Environmental Law Practice Group in the firm's San Francisco office.

Areas of Practice

Louise helps clients navigate all areas of environmental law. With an in-depth knowledge of federal and state regulations, her practice focuses on assisting clients with a wide variety of environmental regulatory and litigation matters.

Louise advises clients on regulatory compliance and defense, including matters involving the Comprehensive Environmental Response, Compensation and Liability Act (...

415-774-2997
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