Agency Accused of Refusing to Enforce Law

CORNUCOPIA, WI:  In a letter today, The Cornucopia Institute informed the USDA of their intention to file a complaint in federal district court accusing the agency of ignoring the organic regulations, and the intent of Congress, by their failure to enforce the law.

The impending lawsuit is just the latest salvo in a seven-year-long dispute between organic family farmers and the USDA.  "A wide cross section of the organic industry has repeatedly petitioned the USDA to crack down on an increasing number of industrial-scale factory-farms that are producing ‘organic’ milk,” said Mark Kastel, Senior Farm Policy Analyst at the Wisconsin-based Cornucopia Institute.

At the center of the controversy are two major agribusiness corporations, Dean Foods and Aurora Dairy.  Dean's Horizon brand and private-label milk produced by Aurora (marketed by Safeway, Wild Oats, Trader Joe's, and Wal-Mart, among others) have gained a dominant market share, estimated to be as high as 70%, by ramping up production on feedlot dairies milking as many as 2000 to 10,000 cows.

"Organic consumers, when they pay premium prices, believe that they are supporting a different kind of environmental stewardship, are promoting humane animal husbandry, and are creating economic justice for family farmers," said Columbus, Ohio attorney David G. Cox, who is representing Cornucopia on other matters involving the USDA and organic certifiers.  "When consumers find out that their milk has come from factory-farms in desert states whose scale of operations endanger the livelihood of hard-working families, and the milk is then shipped all around the country, they feel betrayed."  The giant farms have been accused of confining their animals instead of pasturing them as the regulations require, which Cox said constitutes a violation of law.

At the root of the pending lawsuit is the agency's refusal to adjudicate a series of legal complaints filed by The Cornucopia Institute over the past two years.  "Through a successful freedom of information lawsuit, the USDA was forced to release documents that indicate some investigations into alleged violations of organic regulations on feedlot dairies were not pursued for political reasons," stated Will Fantle, Cornucopia's Research Director.  Other complaints filed by Cornucopia that are being investigated have been languishing for up 15 months without resolution.

Cornucopia's letter to USDA Secretary Michael Johanns stated that they would challenge in court the assertion by the Department’s National Organic Program that the current law is vague and unenforceable.  Cornucopia representatives noted they are willing to meet with Department officials to explore any possible alternatives prior to the filing of the lawsuit. 

"There are five sections in the federal organic standards that relate to pasture and grazing.  Taken together they leave little doubt as to what is expected of organic livestock producers," said Jim Riddle, of the University of Minnesota and former chair of the National Organic Standards Board.  "It is no coincidence that except for the handful of mega-farms, all of the nation’s organic dairy farmers, and most of the certifiers that inspect them, understand that grazing is required and operate their farms in accordance with the law."

The USDA has also been accused of intentionally circumventing the authority of their expert advisory panel, the National Organic Standards Board (NOSB).  The body, charged by Congress with advising the USDA Secretary on organic policy, has made recommendations to the agency on five separate occasions, in an attempt to crack down on scofflaws operating the industrial dairies.  Each one of these recommendations, made after numerous public hearings and deliberations with representatives of farm, consumer, and public interest groups, has either been rejected or ignored by the Agriculture Department.

"Since we passed the first policy recommendation in 2001, which would have put a stop to these corporate farms abusing the trust of organic consumers, 10 to 20 more of these mammoth industrial dairies, which are placing family farmers at a competitive disadvantage, have started up (or are in the process of transitioning to organic)," said Riddle. "It appears that the USDA is looking the other way by allowing these confinement dairies to not provide pasture for their lactating cows, and by allowing a few certification agencies to approve these factory-farm operations.”

Through a letter recently secured and made public by Cornucopia, it was revealed that an alliance of dairy processors and marketers, along with their powerful Washington lobbyists, secretly approached the USDA, long after the formal public comment period closed, recommending their own "fix" for this controversy.

“The processors' recommendations are a sellout, and any new rule based on them would actually weaken the current law, not strengthen it," said David Griffiths of 7-Stars Farm, an organic dairy producer from Phoenixville, Pennsylvania.  "If the USDA arrogantly passes new regulations that institutionalize the industrial dairies currently exploiting the reputation of the organic label, they won't have just one lawsuit to contend with here.  Dairy farmers will file an additional action charging that the USDA is facilitating a coup that will drive us out of business."

Meanwhile, The Cornucopia Institute is not waiting for the USDA to take action, or the pending lawsuit to work its way through the court system.  They say that they have "appealed to a higher authority"—the organic consumer.  Last year they published a comprehensive research study and ranking of every organic dairy brand in the country in terms of their ethical approach to abiding by the letter and spirit of the organic law.

“Our dairy scorecard, rating almost 70 brands of organic milk, butter, cheese, ice cream, and yogurt, empowers consumers and wholesale buyers in the marketplace," Kastel said.  "And the fallout is growing from our publishing of the dairy scorecard and ‘outing’ the corporate brands abusing consumer trust—and highlighting the heroes.  The Cornucopia report found that over 90% of the name-brands are upholding high organic ideals."

After the Organic Consumers Association called for a boycott of Horizon brand milk, scores of major natural food retailers around the country dropped Horizon products, including many of the country's largest grocery cooperatives and some Whole Foods Market stores.  In addition, the investor community has reacted, expressing concern about dairy giant Dean Foods’ (the Horizon brand’s owner) approach to organics.  A shareholders’ resolution has been filed that will be presented for consideration at Dean's annual meeting this spring.

Stock in Dean Foods recently tumbled when it was reported that its organic foods subsidiary reported sales growth of just 5 percent, well below most analysts' projections—in an industry that has been enjoying strong double-digit growth.

"The economic success of the organic industry, a sector now in excess of $16 billion in annual sales volume, is based on consumer trust.  Our lawsuit is intended to hold the USDA accountable for enforcing the law, which it heretofore has refused to do," Kastel emphatically stated.  "We will not stand idly by as agribusinesses cash in their investment in lobbying and campaign contributions at a USDA that seemingly has become their lapdog."

Editor’s Note:  The full text of the letter sent to USDA Secretary Johanns may be viewed on The Cornucopia Institute web page at


Relevant Ruminant Regulatory Standards for Organic Products

§ 205.2 Terms defined.

Pasture.  Land used for livestock grazing that is managed to provide feed value and maintain or improve soil, water, and vegetative resources.

    Contrary to what has been suggested by some factory-farm operators, you cannot call a feedlot "pasture" or call an exercise area “pasture” when that area is confining hundreds or thousands of cows.  The definition prevents overgrazing and degradation of the land.
§ 205.237 Livestock feed 

(a)    The producer of an organic livestock operation must provide livestock with a total feed ration composed of agricultural products, including pasture and forage, which are organically produced and, if applicable, organically handled ….
    Clearly, this regulation includes pasture as a required portion of the total feed ration for ruminant livestock.
§ 205.238 Livestock health care practice standard

(a) The producer must establish and maintain preventive livestock health care practices, including:
(3) Establishment of appropriate housing, pasture conditions, and sanitation practices to minimize the occurrence and spread of diseases and parasites; 
(4) Provision of conditions which allow for exercise, freedom of movement, and reduction of stress appropriate to the species;

§ 205.239 Livestock living conditions.

(a) The producer of an organic livestock operation must establish and maintain livestock living conditions which accommodate the health and natural behavior of animals, including:
(1) Access to the outdoors, shade, shelter, exercise areas, fresh air, and direct sunlight suitable to the species, its stage of production, the climate, and the environment;
(2) Access to pasture for ruminants;
    Natural behavior for dairy cows, as noted in (a), is grazing on pasture and cannot be confused with confinement to feedlots to facilitate consuming high-production rations from a concrete feed trough. The USDA, and others, suggest that "access to pasture," noted in (2), is an inadequate provision and unenforceable in the regulations.  Our lawyers advise us that everything in the law "has meaning."  This is a very basic statement and regulators cannot ignore it.  Furthermore, it is in context with the other requirements in the regulations.  Adding these up clearly indicates an expectation and requirement to graze cattle.
§ 205.239 Livestock living conditions.

(b) The producer of an organic livestock operation may provide temporary confinement for an animal because of:

(1) Inclement weather;
(2) The animal's stage of production;
(3) Conditions under which the health, safety, or well being of the animal could be jeopardized; or
(4) Risk to soil or water quality.
    Some industrial dairy operators have suggested that the 305-day lactation period is a "stage of production."  This is clearly not the intention of the rules, and furthermore 305 days of every 365 days clearly could not be constituted as "temporary."  The NOSB has clearly stated that lactation is not a stage of production, under which cows can be continuously confined.  This guidance from the NOSB, along with a number of other attempts to prod the USDA into cracking down on exploitation of the regulations, has never been officially sanctioned and adopted by the National Organic Program.  The obvious intention of the drafters of this regulation was to require organic livestock producers to pasture their animals when one of the aforementioned (temporary) criteria did not exist.