With organic foods now accounting for over $40 billion in total US food sales, and the accompanying larger scale of organic operations, increased scrutiny of the integrity of the National Organic Program represents a natural progression in the evolution of the program’s history. Two recent Washington Post articles – Why your ‘organic’ milk may not be organic, and The labels said ‘organic’ – are byproducts of this increased scrutiny, and could serve as indicators of the types of activities that will occur over the next several years in an attempt to redefine the narrative on organic products.

The growth of the organic sector has coincided with an era in which consumers are demanding more detailed information on food ingredients. This "right to know" movement has translated into enhanced policy debates over proposals that would impose additional labeling requirements on foods, as evidenced by developments over the past several years on issues such as bioengineered food disclosure.

Related to these labeling initiatives, consumers also are seeking assurances over the integrity of organic and locally-grown foods, especially considering the premium price points associated with these products. While USDA Secretary Sonny Perdue has indicated that he plans to ensure continued growth of the organic sector, the perception will remain that there will be lax enforcement of organic certification inspections under the Trump Administration, and that USDA even will allow for some flexibility in what production methods would be authorized.

As if on cue, USDA announced on May 9, 2017, that it was again delaying the implementation of its organic animal welfare standard that originally was to go into effect on March 20; this was the second delay in the implementation of this standard with the initial one having been announced in early February.

Given this, it is likely that the policy debate will take place in other arenas, including the media, as the recent Washington Post articles demonstrate. The article on the organic dairy farm was a result of an investigation by the Washington Post reporters that included a number of visits to the farm over an eight day period. The farm has over 15,000 cows which, the article noted, is more than 100 times the size of a typical herd at an organic dairy farm. Organic dairies are required to allow cows to graze daily throughout the growing season, and the reporters found that signs of grazing were sparse during their visits, and that the number of cows seen on pasture was only in the hundreds.

The other article focused on organic labels, following a shipment of 36 million pounds of ordinary soybeans from Ukraine to Turkey to California. According to documents obtained by the Post, the shipment of conventionally produced soybeans began as ordinary, but by the time they had reached California, the shipment had been labeled organic. The Post estimated that the label switch increased their value by approximately $4 million.

Media investigations such as this could become more prevalent in the next few years as stakeholder groups supportive of organic products seek to work with the media to facilitate these types of investigations.

Another investigative approach some stakeholder groups may pursue is borrowing a tactic from animal rights groups by becoming employees of large organic operations in order to conduct undercover investigations. While violating organic practices may not resonate as deeply compared to animal welfare controversies, it still would have the potential of embarrassing a company and harming its value.

The courts will provide another venue for the deliberation over the authenticity of organic products. State attorneys general can act independently to file lawsuits against companies if they believe the claims are misleading or not truthful.

Moreover, although the Organic Food Production Act does not provide a private right of action, consumers themselves may seek to enforce organic standards by pursuing state law claims. In December 2015, the Supreme Court of California held that the federal regulatory regime for certifying organic growers does not preempt a state law claim that a certified grower is intentionally mislabeling conventionally-grown produce and selling it as organic. The court rejected the defendants’ argument that the federal OFPA expressly preempts general state consumer laws, and also found that there was no implied preemption.

Whether these issues get debated before Congress, the Administration or in the courts, Arent Fox possesses the expertise to help clients navigate the issue management process.