Organics Advocates Launch Ninth Circuit Appeal Challenging Hydroponics Certification | Sheppard Mullin Richter & Hampton LLP

The decades-long battle over organic certification of hydroponically grown foods is about to be resolved, with the Ninth Circuit Court of Appeals set to rule on an appeal from the Center for Food Safety (CFS) in a case that seeks to block the certification of uncultivated foods. in the ground. On May 19, 2021, CFS filed an appeal asking the Ninth Circuit to set aside a decision of the tribunal de grande instance confirming the United States Department of Agriculture’s determination that foods grown hydroponically are eligible for certification under the National Organic Program (NOP). The outcome of the call could have important implications for both hydroponically grown fruits and vegetables and other soilless crops, including mushrooms and sprouts.

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

The CFS coalition filed a lawsuit challenging the USDA’s denial, but the District Court for the Northern District of California referred to the USDA’s interpretation of OFPA. Among other things, the court found that the USDA had reasonably determined that “OFPA does not impose a ban on hydroponics.”

A Ninth Circuit ruling in favor of the USDA could help settle a decade of uncertainty, while a victory for CFS and its allies would cast doubt on the certification of all soilless crops, which include hydroponics , mushrooms and shoots, and aquaponics (combining hydroponics and fish farming in complementary production systems). Currently, there is no official NOP guidelines or policy for the certification of soilless crops, and some certifiers certify hydroponics as organic, while others refuse to do so. The first federal hearings on the issue of hydroponic certification resulted in a 2011 National Organic Standards Board (NOPSB) recommendation 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 proposal recommendation to exclude hydroponics. The SCF petition followed.

The petitioners’ opening brief is expected on July 19, 2021 in Center for Food Security et al. against Vilsak, Case No.21015883.

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