Federal Magistrate Judge Laurel Beeler is a former assistant U.S. attorney who spent much of her career as a top prosecutor for major federal crimes. Her latest assignment as Magistrate for the U.S. District Court for Northern California is to decide if the soil must be used to grow organic crops.

Beeler will be reviewing USDA’s decision to permit the “indoor agricultural evolution” known as hydroponics to use the “organic” marketing slogan. Food safety is a driving force behind the hydroponics evolution, where plants are grown in water with specific mineral nutrient solutions, not soil.

The U.S. Department of Agriculture was sued March 2 in a civil action brought by organic interests that use soil to grow their crops. They claim the USDA decision allowing hydroponics to be sold under the organic label puts dirt growers at a disadvantage.

Led by the Center for Food Safety, the plaintiffs include Swanton Berry Farms Inc., Full Belly Farm Inc., Durst Organic Growers Inc., Terra Firma Farms Inc., Jacobs Farm/Del Cabo Inc., Long Wind Farm Inc., OneCert Inc. and the Maine Organic Farmers and Gardeners Association.

The crux of the groups’ argument is that the Organic Foods Production Act (OFPA), which set up the National Organic Program, imposes standards that require organic growers to “foster soil health.”

“These mandatory specific soil-based production requirements create an equal marketplace for organic farmers and ensure that foods labeled and sold as organic are consistently produced to deliver the ecological benefits that consumers associate with the organic label,” says the complaint.

“. . . stakeholders in the organic marketplace have consistently held that as a soil-less crop production system hydroponic operations do not foster soil fertility, and cannot meet the requirement for organic certification under the National Organic Program.”

USDA’s last decision favoring hydroponic growers was date June 6, 2019. The pro-soil side says the decision “weakened the integrity of the organic label.”

Swanton Berry Farm, an organic with growing operations in Santa Cruz and San Mateo, CA, acknowledges in the complaint that it has difficulty competing against hydroponically-produced strawberries.

Swanton says its “market competitiveness is injured by the confusion caused by the hydroponically produced strawberries labeled and sold as organic at lower prices than those that soil-based organic strawberry farmers can afford to match.”

The complaint also says the plaintiff Full Berry Farm “has experienced increased price competition in our wholesale and retail channels with hydroponically produced, certified organic produce.” The 400-acre California grower produces tomatoes, berries, fresh lettuce, herbs, and other salad greens.

The organic growers say “that hydroponic operations have their place in the diverse marketplace,” but don’t meet the soil-building requirements of the organic program requirements. No specific hydroponic growers are named in the lawsuit. Only USDA and its officials are named as defendants.

The Center for Food Safety is a 501c3, U.S. non-profit advocacy organization, based in Washington, D.C. It maintains an office in San Francisco.

“Healthy soil is the foundation of organic farming,” said Andrew Kimbrell, executive director of plaintiff Center for Food Safety, “Organic farmers and consumers believe that the Organic label means not just growing food in the soil, but improving the fertility of that soil. USDA’s loophole for corporate hydroponics to be sold under the Organic label guts the very essence of ‘Organic’.”

“The federal organic law unequivocally requires organic production to promote soil fertility,” said Sylvia Wu, senior attorney at the Center for Food Safety and counsel for plaintiffs. “USDA’s decision to allow mega-hydroponic operations that do nothing with soil to be sold as ‘Organic’ violates the law.”

Allowing hydroponics to be certified organic is another attempt to weaken the integrity of the Organic label, and has resulted in market confusion and inconsistent organic certifications, according to the CFS complaint.

Organic agriculture has always been partly based on principles of improving soil fertility and promoting ecological balance. The National Organic Standards Board (NOSB), the expert body assigned by Congress to advise USDA on organic matters, has repeatedly called on USDA to prohibit organic certification of hydroponics, but USDA has ignored that recommendation.

As a result of USDA’s inaction, CFS filed a legal petition in January 2019 formally asking USDA to prohibit hydroponic operations from the Certified Organic label on the basis that they do not fulfill the national organic standard of contributing to soil health, but USDA denied the petition’s requests later that year. The lawsuit filed today states that USDA’s rationale for denying the 2019 petition is arbitrary, capricious, and contrary to our federal organic law.

In 2016, CFS won a  lawsuit closing a loophole that was permitting some organic operations to use compost contaminated with pesticides.

Some people contend that indoor hydroponic growing greatly enhances food safety by eliminating the possibility of animal incusions such as birds and deer. Pro-hydropinocs growers also say their growing water is free of pathogens that are naturally occurring in soil.

CFS is currently leading a lawsuit challenging the Trump administration’s rollback of vital organic rules that set standards for organic livestock care, such as adequate space and outdoor access. The challenged loophole for hydroponic operations would eliminate any need for organic farming to involve working with nature.

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