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My Reply to   NOP's "Report to Congress" on the impact of Harvey v. Johanns

by Arthur Harvey                                                         March 28, 2006

   The full text of the NOP report can be read at:

  Except for its discussion of dairy transitions and .606, the NOP report generally
reflects the opinions of the Organic Trade Association. This is not a surprise,
since OTA wrote the amendment to OFPA, and OTA developed the only rationale
made public so far.

I. FEED FOR DAIRY COWS.

   NOP estimates that the end of the 80/20 allowance will mean a loss "from $1
million to $5 million annually to the organic dairy sector".   This is backed up
with figures from several identified sources including ERS and a state university.

  NOP makes one error in the dairy discussion---that additional costs "must
either be passed forward to consumers in the form of high fluid milk and dairy
product prices---already at high premiums relative to conventional dairy product
prices---or they would have to be absorbed by farmers."

  But the NOP forgets about the handlers, who process and distribute milk,
yogurt, cheese, etc. To those businesses, $1-$5 million is a small ripple on the
surface. In recent years, they have given dairy farmers conversion subsidies,
and there is no reason to think that will not continue.

II. COMMERCIAL AVAILABILITY.

  NOP continues to assert, falsely, that .606 allowed only the five ingredients
listed there. The entire organic industry knows otherwise, and the NOP website
so advised manufacturers for a number of years. It is a pity that the NOP feels a
need to perpetuate a lie, for some unknown bureaucratic reason. Would it not be
better to simply admit the error?

  At any rate, NOP gives no clues as to how the expedited listing for .606 may be
determined. Will the NOSB be involved in each listing Will there be notice and
comment?    At the moment, all they will predict is to "ensure the integrity of the
seal and the maintenance of NOP standards".

III. "RESTORING THE NOP"

    Under this title, the NOP praises itself, implying that the court decision in some
way threatened the USDA program. A peculiar and perhaps revealing glimpse
into subjective feelings in the agency.
It may reflect the fact that the court decision would have caused a shrinkage---at
least temporarily---in the use of the "USDA Organic" seal, as manufacturers
switched to "made with organic" labels. But there is no indication in this
Report that the NOP made any effort to ask manufacturers about this question:
To what extent would they find natural sustitute ingredients , even at higher
cost,---or switch to the "made with organic" label?

IV. OTA'S SYNTHETICS SURVEY.

  This survey is the entire source for NOP's speculations about the effects of the
court decision. The survey was conducted by the OTA in a context of informing
its members that most of them would have to stop using the USDA seal by the
end of 2005, and hence a legislative "fix" was needed at once. The 130
responses received from 1300 members in a state of panic, may not be
representative of anything meaningful. In any case, the survey was not
objective, and was initiated by the same organization that wrote the law
amendment. It must be assumed that the two actions had the same goal.

  It would be tiresome to discuss every one of dozens of errors about synthetics
in the NOP Report. But four are worthy of some analysis.

1) "Research conducted as a result of the court's decision showed a measurable
adverse impact that would have amounted to billions of dollars at retail."   As
noted above, the figure given for the dairy feed impact was $1-$5 million, and
well documented. Suddenly, that figure has been increased by 1000-fold, with
inadequate documentation.

2) "Consumer confidence and recognition of the USDA seal likely was considered
a major factor by Congress when it amended the OFPA." This statement has no
documentation. There is no record that Congress had any factors at all in mind,
since the text was discussed only after the conference report was signed, and
therefore not subject to amendment. Perhaps Roy Blunt had some sort of
"intent"; perhaps not.   As Jim Riddle has mentioned, this total lack of
Congressional intent creates a legal jungle when one tries to reconcile conflicting
sections of OFPA resulting from the amendment.

(to be continued)