By Kimberly Kindy and Lyndsey Layton
The Washington Post
updated 4:20 a.m. CT, Fri., July 3, 2009
WASHINGTON – Three years ago, U.S. Department of Agriculture employees determined that synthetic additives in organic baby formula violated federal standards and should be banned from a product carrying the federal organic label. Today the same additives, purported to boost brainpower and vision, can be found in 90 percent of organic baby formula.
The government’s turnaround, from prohibition to permission, came after a USDA program manager was lobbied by the formula makers and overruled her staff. That decision and others by a handful of USDA employees, along with an advisory board’s approval of a growing list of non-organic ingredients, have helped numerous companies win a coveted green-and-white “USDA Organic” seal on an array of products.
Grated organic cheese, for example, contains wood starch to prevent clumping. Organic beer can be made from non-organic hops. Organic mock duck contains a synthetic ingredient that gives it an authentic, stringy texture.
Relaxation of the federal standards, and an explosion of consumer demand, have helped push the organics market into a $23 billion-a-year business, the fastest growing segment of the food industry. Half of the country’s adults say they buy organic food often or sometimes, according to a survey last year by the Harvard School of Public Health.
But the USDA program’s shortcomings mean that consumers, who at times must pay twice as much for organic products, are not always getting what they expect: foods without pesticides and other chemicals, produced in a way that is gentle to the environment.
The market’s expansion is fueling tension over whether the federal program should be governed by a strict interpretation of “organic” or broadened to include more products by allowing trace elements of non-organic substances. The argument is not over whether the non-organics pose a health threat, but whether they weaken the integrity of the federal organic label.
Agriculture Secretary Tom Vilsack has pledged to protect the label, even as he acknowledged the pressure to lower standards to let more products in.
In response to complaints, the USDA inspector general’s office has widened an investigation of whether products carrying the label meet national standards. The probe is also looking into the department’s oversight of private certifiers who are hired by farmers and food producers and inspect products to determine whether they can use the label.
Some consumer groups and members of Congress say they worry that the program’s lax standards are undermining the federal program and the law itself.
“It will unravel everything we’ve done if the standards can no longer be trusted,” said Sen. Patrick J. Leahy (D-Vt.), who sponsored the federal organics legislation. “If we don’t protect the brand, the organic label, the program is finished. It could disappear overnight.”
Organic advocates and food marketing experts said the introduction this month of new “natural” products by an organics division of Dean Foods is the latest sign that the value of the USDA label has eroded. The yogurt and milk products will be distributed under the Horizon label and marketed as a lower-priced alternative to organic products.
Congress adopted the organics law after farmers and consumers demanded uniform standards for produce, dairy and meat. The law banned synthetics, pesticides and genetic engineering from foods that would bear a federal organic label. It also required annual testing for pesticides. And it was aimed at preventing producers from falsely claiming their foods were organic.
The USDA created the National Organic Program in 2002 to implement the law. By then, major food companies had bought up most small, independent organic companies. Kraft Foods, for example, owns Boca Foods. Kellogg owns Morningstar Farms, and Coca-Cola owns 40 percent of Honest Tea, maker of the organic beverage favored by President Obama.
That corporate firepower has added to pressure on the government to expand the definition of what is organic, in part because processed foods offered by big industry often require ingredients, additives or processing agents that either do not exist in organic form or are not available in large enough quantities for mass production.
Under the original organics law, 5 percent of a USDA-certified organic product can consist of non-organic substances, provided they are approved by the National Organic Standards Board. That list has grown from 77 to 245 substances since it was created in 2002. Companies must appeal to the board every five years to keep a substance on the list, explaining why an organic alternative has not been found. The goal was to shrink the list over time, but only one item has been removed so far.
The original law’s mandate for annual pesticide testing was also never implemented — the agency left that optional.
From the beginning, farmers and consumer advocates were concerned about safeguarding the organic label. In 2003, Arthur Harvey, who grows organic blueberries in Maine, successfully sued the USDA, arguing that the fledgling National Organic Program had violated federal law by allowing synthetic additives.
“The big boys like Kraft realized they could really cash in by filling the shelves with products with the organics seal,” Harvey said. “But they were sort of inhibited by the original law that said no synthetic ingredients.”
His victory was short-lived. The Organic Trade Association, which represents corporations such as Kraft, Dole and Dean Foods, lobbied for and received language in a 2006 appropriations bill allowing certain synthetic food substances in the preparation, processing and packaging of organic foods, creating conditions for a flood of processed organic foods.
Tom Harding, a Pennsylvania-based consultant for small local farmers and big producers, including Kraft, said that broadening the law has helped meet demand by multiplying the number of organic products and greatly expanded the amount of agricultural land that is being managed organically.
“We don’t want to eliminate anyone who wants to be a part of the organic community,” Harding said. “The growth we’ve seen has helped the entire organic food chain.”
Today, labels on organic infant formula boast that they include DHA and ARA, synthetic fatty acids that some studies suggest can help neural development. But according to agency records, when the issue came before the USDA in 2006, agency staff members concluded that the fatty acids could not be added to organic baby formula because they are synthetics that are not on the standards board’s approved list.
The fatty acids in formula are often produced using a potential neurotoxin known as hexane, prompting many organics advocates to conclude that the board would not approve their use if it took up the matter.
In a rare move, Barbara Robinson, who administers the organics program and is a deputy USDA administrator, overruled the staff decision after a telephone call and an e-mail exchange with William J. Friedman, a lawyer who represents the formula makers.
“I called [Robinson] up,” Friedman said. “I wrote an e-mail. It was a simple matter.” The back-and-forth, he said, was nothing more than part of the routine process that sets policy in Washington.
In an interview, Robinson said she agreed with Friedman’s argument that fatty acids were not permitted because of an oversight. Vitamins and minerals are allowed, but “accessory nutrients” — the category that describes fatty acids — are not specifically named.
As for hexane, Robinson said the law bans its use in processing organic food, but she does not believe the ban extends to the processing of synthetic additives.
“We don’t attempt to say how synthetic products can be produced,” she said.
Manufacturers say the fatty acids are safe and provide health benefits to infants.
“We test every lot that comes out for hexane, and there is no residue,” said David Abramson, president of Maryland-based Martek Biosciences, which produces the fatty acids used by formula companies.
Several groups have filed complaints with the USDA saying they think that the inclusion of the fatty acids in organic products violates federal rules and laws. And they say that Robinson did not have the authority to make the decision on her own.
“This is illegal rulemaking — a complete violation of the process that is supposed to protect the public,” said Gary Cox, a lawyer with the Cornucopia Institute, an organics advocacy group.
Cox and others make the same argument about other decisions by Robinson and several members of her staff.
In 2004, Robinson issued a directive allowing farmers and certifiers to use pesticides on organic crops if “after a reasonable effort” they could not determine whether the pesticide contained chemicals prohibited by the organics law.
The same year, Robinson determined that farmers could feed organic livestock non-organic fish meal, which can contain mercury and PCBs. The law requires that animals that produce organic meat be raised entirely on organic feed.
After sharp protests from Leahy, Consumers Union and other groups, Ann Veneman, then agriculture secretary, rescinded these and two other directives issued by Robinson.
The orders were signed by a staff member, but Robinson took responsibility, saying she had made the decisions unwisely without consulting organics experts, certifiers or the standards board.
“I failed, and take this as a learning experience and do not want it to happen again,” she told board members in 2004.
Earlier this year, however, Robinson issued a series of directives without consulting experts, certifiers or the board. She said that because the issues were urgent, including one on food safety, she had to act quickly.
In an interview, Robinson said she believes the federal program’s main purpose is to “grow the industry,” and she dismissed controversies over synthetics in organic foods as “mostly ridiculous.”
Joe Smillie, a board member, said he thinks that advocates for the most restrictive standards are unrealistic and are inhibiting the growth of organics.
“People are really hung up on regulations,” said Smillie, who is also vice president of the certifying firm Quality Assurance International, which is involved in certifying 65 percent of organic products found on supermarket shelves. “I say, ‘Let’s find a way to bend that one, because it’s not important.’ . . . What are we selling? Are we selling health food? No. Consumers, they expect organic food to be growing in a greenhouse on Pluto. Hello? We live in a polluted world. It isn’t pure. We are doing the best we can.”
Under Robinson, the National Organic Program has repeatedly opted not to issue standards spelling out how organic food must be grown, treated or produced. In 65 instances since 2002, the standards board has made recommendations that have not been acted upon, creating a haphazard system in which the private certifiers have set their own standards for what products can carry the federal label.
The agency has not acted, for example, on a 2002 board recommendation that would answer a critical question for organic dairy farmers: how to interpret the law requiring that their cows have “access to pasture,” rather than be crowded onto feedlots. The result has been that some dairy farms have been selling milk as organic from cows that spend little if any time grazing in open spaces.
“This is really a case of ‘justice delayed is justice denied,’ ” said Alexis Baden-Mayer, national political director for the Organic Consumers Association. “The truly organic dairy farmers, who have their cows out in the pasture all year round, are at a huge competitive disadvantage compared to the big confinement dairies.”
Robinson has blamed the delays on the program’s small staff, saying that “we have to prioritize.”
Without specific standards, the wide discretion given to certifiers has invited producers and farmers to shop around for the certifiers most likely to approve their product, consumer groups say.
Sam Welsch, president of the Nebraska-based OneCert, said his company this year has lost as many as a dozen fruit and vegetable farmers seeking other certifiers that allow the use of certain liquid fertilizers, which most organics experts believe are prohibited by organics laws because they are unnaturally spiked with high levels of nitrogen.
“The rules should be clear enough that there is just one right answer,” Welsch said.
Consumer groups and organics advocates are hopeful that the Obama administration will bolster the program. In his proposed budget, the president has doubled resources devoted to organics and installed USDA leaders who support change.
Vilsack’s deputy, organics expert Kathleen A. Merrigan, told consumer groups three weeks ago that she intends to heighten enforcement. Merrigan helped write the original organics law and get the federal program off the ground in 2002.
And Vilsack said he wants to protect the organic label. “That term, ‘organic,’ needs to be pure,” he said in an interview. “You can’t allow the definition to be eroded to where it means nothing. . . . We have to fight against that kind of pressure.”
Still, at the standards board’s meeting last month, Chairman Jeff Moyer noted the growing tension. “As the organic industry matures, it is becoming increasingly more difficult to find a balance between the integrity of the word ‘organic’ and the desire for the industry to grow.”