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OPN Connect Newsletter 255 · February 10, 2022

CSO Fights for Continued Allowance of Hydroponics in Organic Ag


As the legal battle over hydroponics in organic agriculture continues, the Coalition for Sustainable Organics (CSO), which represents 40 produce companies, is dedicating its time and resources to defending the eligibility of hydroponics for organic certification.

“The CSO is all in on the lawsuit,” says CSO Executive Director Lee Frankel, referring to the legal action taken by the Center for Food Safety (CFS) and several other plaintiffs against the USDA in 2020. The lawsuit came about after CFS filed a petition in 2019 asking the USDA to engage in rulemaking based on the National Organic Standards Board’s (NOSB) Spring 2010 formal recommendation to prohibit hydroponics from being eligible for organic certification. (The 2010 NOSB recommendation defined hydroponics as “the production of normally terrestrial, vascular plants in nutrient rich solutions or in an inert, porous, solid matrix bathed in nutrient rich solutions.”)

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Lee Frankel, Executive Director, Coalition for Sustainable Organics

The USDA denied the petition, so CFS and a coalition of organic growers and stakeholders sued the agency the following year. On March 18, 2021, the US District Court for Northern California ruled against the plaintiffs, who then quickly filed a notice to appeal to the Ninth Circuit two months later. Last fall, CFS and the plaintiff coalition submitted their opening brief for the appeal, and the USDA will file its response by February 14.

The lawsuit came about after CFS filed a petition in 2019 asking the USDA to engage in rulemaking based on the National Organic Standards Board’s (NOSB) Spring 2010 formal recommendation to prohibit hydroponics from being eligible for organic certification.

“It is frustrating that the coalition of growers working with the CFS are looking to limit organic availability with the appeal of the well-reasoned decision by the judge in the original case,” says Frankel.

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Though not named in the lawsuit, CSO is currently working with a team of lawyers to write an amici curiae (friends of the court) brief in support of hydroponics in organic ag. Once the brief is drafted, other organizations can review it and sign on as well. Western Growers, the Aquaponics Association, and The Scotts Company joined CSO’s 2020 brief for the district court proceeding. The brief that CSO is currently working on will be filed to the Ninth Circuit Court of Appeals later this month (it is due seven days after USDA’s 2/14 deadline).

“It is frustrating that the coalition of growers working with the CFS are looking to limit organic availability with the appeal of the well-reasoned decision by the judge in the original case.” – Lee Frankel

“The legal costs of making sure that the courts have accurate information as they continue to uphold the legitimacy of organic hydroponics is taking up virtually all of our budget,” says Frankel. “We formally provide information through filing briefs directly with the court to complement the work of the USDA and the DOJ (which defends the USDA in court on this matter). We provide information on the impacts of the case on the industry, the science and biology of organic hydroponic systems, and how organic systems plans function and are verified by independent accredited experts.”

In addition to a 2017 vote by the NOSB against prohibiting hydroponics (as well as last year’s district court ruling), CSO believes hydroponics should continue to be eligible for organic certification for a number of reasons. “Organic hydroponics are part of the solution to make the food supply more resilient and diversified, all while improving the sustainability of organic production,” says Frankel. “Organic hydroponics generally use land, water, and labor more efficiently than other methods and are a tool to help growers address their site-specific challenges in their organic systems plans.”

“We provide information on the impacts of the case on the industry, the science and biology of organic hydroponic systems, and how organic systems plans function and are verified by independent accredited experts.” – Lee Frankel

Frankel notes that hydroponic operations have a smaller footprint than field operations, allowing for the preservation of more woodlands and grasslands, which he says are “much more efficient at storing carbon than even the best crop fields.” Because they often operate year-round (or nearly year-round), Frankel says organic hydroponic operations are also better able to retain workers, which is especially advantageous given the current labor shortages.

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Further, Frankel says that organic hydroponics can be grown in areas where soil is either contaminated or not available, thus bringing produce closer to consumers. “Most importantly,” he adds, “organic hydroponics complement field-grown product by helping to ensure reliable supplies at accessible prices, as everyone deserves organics.”

“Organic hydroponics are part of the solution to make the food supply more resilient and diversified, all while improving the sustainability of organic production.” – Lee Frankel

While he can’t predict with certainty how the Ninth Circuit will rule, Frankel says the appeal represents a very real threat to hydroponics’ eligibility for organic certification: “The Ninth Circuit Court of Appeals has had a reputation of unusual and unexpected decisions, so there is a risk of not having the original ruling upheld if the CSO does not help to set the record straight with accurate information.”

“The organic community should be deeply concerned that the appeal seeks to overturn the [Fall 2017] vote of the National Organic Standards Board on organic hydroponics, the oversight of the industry by USDA, and the will of Congress,” says Frankel. “The plaintiffs failed to convince any of those important bodies where policy is vetted, discussed, and decided. I would encourage growers to insist that their organizations and the trade associations of their suppliers and customers contact the CSO and sign on to our friend of the court brief if they are truly serious about defending the integrity of the organic policy development process.”

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Note: In discussing the CFS lawsuit, CSO uses the definition of hydroponics contained in its first amici brief: “‘Hydroponic’ agriculture is a broad term that includes any method of growing plants without soil.” 

To read OPN's 2021 interview with Lee Frankel, click here

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