1 NR&E Summer 2018
Published in Natural Resources & Environment Volume 33, Number 1, Summer 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
O
rganic farmers are generally thought of as a peaceful
group. They are also seen as passionate advocates
and a particular hydroponic controversy has solid-
ied this image. On October 31, 2017, the day
before the National Organic Standards Board (NOSB) bian-
nual meeting, over 50 farmers and advocates took to the
streets outside the meeting in Jacksonville, Florida. That
same day, more than 14 similar marches took place across the
United States. Organic farmers were pulled from their elds
to the streets to show their support for a proposal to prohibit
hydroponic crops from being labeled organic under the
United States Department of Agriculture (USDA) National
Organic Program (NOP). Many organic farmers argued that
allowing hydroponics to carry the USDA organic seal would
undermine the integrity of the NOP and would further allow
industry to ride the coattails of the farmers who worked so
hard to create it.
To the farmers’ disappointment, the NOSB voted eight
to seven against a recommendation to prohibit hydroponic
crops from being labeled organic. This vote, which outraged
“hard-core” organic farmers, was viewed as a vote for indus-
try. Some have called this vote a “watershed” moment for
the organic program. Others describe it as “killing” the NOP;
organic farmers farm in soil, after all. Many farmers have
threatened to leave the organic program they worked so hard
to establish; others have created new movements like the Real
Organic Project to reclaim organic standards from the USDA.
All question the future of the USDA organic label. Will the
hydroponic vote result in the USDA going one way, while the
organic movement goes another? This article explores the stat-
utory and regulatory background of organic labeling and the
challenges, opportunities, and implications of tting hydro-
ponics into the organic framework.
Although the term “organic” is believed to have originated
in Britain, American Jerome Rodale, the founder of Organic
Farming magazine, coined the term in the United States in the
1940s. As part of the back-to-the-land movement of the 1970s,
interest in organic farming practices grew and several states
enacted organic certication laws to regulate this method of
growing produce. These laws, however, varied from state to
state and the lack of a uniform standard created consumer con-
fusion and allowed for fraudulent marketing practices.
The enactment of the Organic Foods Production Act
(OFPA), as Title XXI of the 1990 Farm Bill, was an effort to
create consistent federal standards for both organic produc-
tion and certication. 7 U.S.C. §§ 6501–6522 (2012). OFPA
broadly denes “organically produced” food as “an agricul-
tural product that is produced and handled in accordance with
[the Act].” 7 U.S.C. § 6502. OFPA aims to establish national
standards governing organically produced products, to assure
consumers that organically produced products meet a uniform
standard, and to facilitate interstate commerce of organically
produced products. 7 U.S.C. § 6501. The USDA secretary
became responsible for establishing an “organic certication
program for producers and handlers of agricultural products
. . . produced using organic methods” described in the act. 7
U.S.C. § 6503.
The NOP certication program took over 12 years to nal-
ize and provides process-based requirements for the production
and handling of food to be labeled, sold, or represented as
organic. 7 C.F.R. § 205.100(a) (“The emphasis and basis of
these standards is on process, not product.”). The NOP is
housed within the USDA Agricultural Marketing Service
and regulates the certication, authentication, and labeling of
organic foods. The NOP regulations dene organic as a “label-
ing term,” 7 C.F.R. § 205.2, and authorize the labeling of raw
or processed agricultural products in three ways: “100 percent
organic,” “organic,” or “made with organic (specic ingredi-
ents or food groups(s)).” 7 C.F.R. § 205.301. The rst label
requires that the product contain 100 percent organically
produced ingredients; the second requires that the product
contain not less than 95 percent organically produced raw or
processed agricultural products; and the third requires that
the product contain at least 70 percent organically produced
ingredients.
A producer intending to use any of these labels in the mar-
ketplace must comply with production standards that “maintain
or improve the natural resources of the operation, including
soil and water quality.” 7 C.F.R. § 205.200. The regulations
specify land requirements and standards for soil fertility, seeds,
crop rotation, and pest management. 7 C.F.R § 205.200–
205.290. USDA-accredited certifying agents (ACAs) evaluate
production standards, review organic plans (the three-year
management history of the land), and perform on-site inspec-
tions to ensure compliance with the USDA organic regulations.
7 C.F.R. §§ 205.500–510, 205.660, 205.670.
The OFPA also established the NOSB, a federal advi-
sory board made up of 15 volunteer representatives of the
organic market, including individuals who own or operate
organic farming or handling operations, retail establishments
with signicant business in organic products, experts in envi-
ronmental protection and conservation, representatives of
public and consumer interest groups, and an organic certify-
ing agent. 7 U.S.C. § 6518(a)–(b). The NOSB assists in the
development of standards for substances to be used in organic
production and makes recommendations to the secretary on a
wide range of issues involving the production, handling, and
processing of organic products. 7 C.F.R. § 205.2. The NOSB
holds public meetings twice a year to vote on proposals and
to receive input from the organic community. Each NOSB
member is appointed by the USDA secretary for a ve-year
term.
Sarah J. Morath
Hydroponics: The End of Organic?
Ms. Morath is the director of Lawyering Skills and Strategies and an
associate clinical professor at the University of Houston Law Center in
Houston, Texas. She may be reached at [email protected].
NR&E Summer 2018 2
Published in Natural Resources & Environment Volume 33, Number 1, Summer 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Hydroponic operations, however, are not resource-free.
Because crops can be grown year-round, hydroponic operations
continuously use energy to maintain certain lighting and tem-
peratures. Hydroponics also require a high initial investment
and can be cost prohibitive to many farmers. Despite these
limitations, the hydroponic market share is expected to have
an annual growth rate of around 6.4 percent over the next
decade to reach approximately$13.73 billionby 2025.
Can Hydroponics Be Organic?
The growing popularity of hydroponics is a cause of concern
for more traditional organic farmers who argue that crops
grown without soil should not be able to use the USDA
organic label. Although hydroponic operations are not men-
tioned in OFPA, the act that established the NOP, some
hydroponic produce carries the USDA “organic certied”
label.
Even though OFPA does not mention the word “hydro-
ponics,” the NOSB had confronted hydroponics before its
November 2017 meeting. In 1995, before the USDA proposed
the rst rules implementing OFPA, the NOSB, in the con-
text of greenhouse standards, made the following statement
on hydroponics: “Hydroponic production in soilless media
to be labeled organically produced shall be allowed if all pro-
visions of the OFPA have been met.” See National Organic
Program, 62 Fed. Reg. 65,850 (Dec. 16, 1997). In 2002, the
NOP redened “organic production” in the Code of Federal
Regulations as “a production system that . . . respond[s] to
site-specic conditions by integrating cultural, biological, and
mechanical practices that foster cycling of resources, promote
ecological balance, and conserve biological diversity.” 7 C.F.R.
§ 205.2. Because this denition did not require that organic
production systems be soil-based, and hydroponics was not spe-
cically addressed elsewhere in the regulations, the door was
left open for certifying agents to certify hydroponic operations
as organic.
In 2010, the NOSB recommended engaging in the rule-
making process to exclude hydroponics formally. The
recommendation, entitled Production Standards for Terrestrial
Plants in Containers and Enclosures, provided that “grow-
ing media shall contain sufcient organic matter capable of
supporting natural and diverse soil ecology. For this reason,
hydroponic and aeroponic systems are prohibited.” National
Organic Standards Board, Proposals and Discussion Documents,
67 (Oct. 2017). The NOP, however, never adopted this
What Is Hydroponics?
Hydroponic cultivation is often thought of as the cultiva-
tion of plants in water. In hydroponic cultivation, however,
roots can receive nutrients through air or in other inert
media as well as from water. Because plants can grow in a
variety of media, hydroponics is more broadly thought of as
the cultivation of plants without soil. The absence of soil
from hydroponic production is at the heart of the organic
movement’s argument that hydroponics may not qualify as
“organic.”
Growing crops in soil requires space, labor, and water, as
well as good weather conditions, and hydroponic advocates
often highlight that these requirements are minimized in
hydroponic cultivation. First, because hydroponic crops are
typically grown vertically, in a closed stacked system, rather
than out, the need for expansive amounts of land is elimi-
nated. Additionally, hydroponic operations apply water and
nutrients directly to the roots of each plant. Water is reused,
and less is lost to evaporation and runoff. The hydroponic
method allows plants to grow faster and closer together, reduc-
ing the demand for space and water. One report found that
as compared to traditional agriculture, vertical farming uses
70 to 95 percent less water and over 90 percent less land.
Renee Choe, How Sustainable Is Vertical Farming? Students Try
to Answer the Question, State of the Planet, Earth Institute,
Columbia University (Dec. 10, 2015), http://blogs.ei.columbia.
edu/2015/12/10/how-sustainable-is-vertical-farming-students-
try-to-answer-the-question. In addition, because hydroponics
does not use soil, there is no chance of soil-borne insect pests,
disease attack, or weed infestation.
Hydroponics is being pursued in places where space or cli-
mate makes conventional farming a challenge. For example,
hydroponics has made rice production a possibility in crowded
Tokyo, Japan, and berry, citrus fruit, and banana production
possible in the dry, arid climate of Israel. Miriam Kresh, Israeli
Start-up Offers a Better Way to Grow Food, Jerusalem Post
(Feb. 24, 2017), available at www.jpost.com/Metro/Hope-for-
a-hungry-planet-476268. In the United States, hydroponics is
a growing component of urban agriculture efforts and is con-
sidered one way to combat food deserts––a place where it is
difcult to nd healthy, affordable fresh food. In 2017, Con-
gresswoman Marcy Kaptur (D–OH) introduced the Urban
Agriculture Production Act, which includes hydropon-
ics in the denition of “urban agriculture.” H.R. 3699, 15th
Cong. (2017). The bill proposes the creation of a new posi-
tion, Urban Agriculture Liaison, within the USDA, who will
provide “technical assistance” to urban farmers using “uncon-
ventional farming practices,” such as hydroponics. Id. at § 5(b)
(4)(F).
Hydroponics is also often discussed when contemplat-
ing the impact of climate change on agriculture production.
Farming has always been a risky business, subject to whims of
Mother Nature, but weather patterns are becoming increas-
ingly unpredictable with many areas experiencing prolonged
water shortages, unexpected frosts, and increased precipitation.
Climate change impacts and will continue to impact agricul-
tural yields, causing leaders to think about alternative farming
methods, including hydroponics. In addition, because hydro-
ponic production can occur year-round, many hydroponic
advocates argue that these operations have a higher yield and
offer a more reliable way to meet the nutritional needs of the
world’s growing population.
Climate change impacts
and will continue to impact
agricultural yields, causing
leaders to think about
alternative farming methods,
including hydroponics.
3 NR&E Summer 2018
Published in Natural Resources & Environment Volume 33, Number 1, Summer 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
product must be produced and handled without the use of . . .
hydroponics.” Id. at 90.
In making its recommendation, the subcommittee noted
that part of the NOSB’s responsibility is to “recommend pro-
duction practices that uphold the integrity of the USDA
organic seal, that are built on the primacy of soil steward-
ship,” and “that are managed to emulate ecological processes
of productive ecosystems.” Id. at 71. Despite the subcommit-
tee’s recommendation and the vocal nature of those opposed
to allowing hydroponics to wear the organic label, the NOSB
voted against excluding hydroponics from the USDA’s organic
program in November 2017.
The End of Organic?
The hydroponics vote is not the only event to have threatened
the integrity of the organic program. The organic label has
undergone increased criticism as claims of fraud and dilution
are reported. Last year, shipments of soybean and corn from
Turkey were imported and sold in the United States under the
USDA organic label. A Washington Post investigation of the
health certicates accompanying the shipments revealed that
these imports did not comply with USDA organic standards,
in part because certain pesticides were listed on the health cer-
ticates. Peter Whoriskey, The Labels Said “Organic.” But These
Massive Imports of Corn and Soybeans Weren’t, Washington
Post, May 12, 2017, at A10. A year earlier, the Washington Post
discovered that Aurora Organic Dairy, a dairy that supplies
organic milk to major retailers like Walmart and Costco, was
housing over 90 percent of its cows indoors in violation of the
organic regulations for dairy livestock. Peter Whoriskey, Why
Your “Organic” Milk May not Be Organic, Washington Post,
May 1, 2017, at A10. See also 7 C.F.R. § 205.239. The USDA
closed its investigation of this facility in 2017 nding no vio-
lations of USDA organic standards, even though a chemical
analysis of the milk revealed a composition more like conven-
tional milk than other organic brands. See Peter Whoriskey,
USDA Closes Investigation into a Massive Organic Farm—But
What Did It Check? Washington Post, Sept. 28, 2017, at A11.
Hydroponics, like the corn and dairy examples, illustrate
the increasing desirability of the organic label. Organic sales
continue to climb and in 2017 reached close to $49.4 bil-
lion, accounting for more than 5 percent of total food sales.
Organic Market Analysis, Organic Trade Association, www.
ota.com/resources/market-analysis (last visited June 20, 2018).
As the popularity of organic food grows so does the number
of businesses entering the organic market. Coca-Cola, Dole,
General Mills, Heinz,Kellogg,Kraft, TysonFoods, Walmart,
and Kroger have all either acquired, partnered, or started their
own organic lines. Kate L. Harrison,Organic Plus: Regulating
Beyond the Current Organic Standards, 25 Pace Envtl. L. Rev.
211, 225 (2008).
But this growth is not without consequences. One scholar
notes “a negative correlation between larger agribusinesses
entering the organic market and the erosion of the organic
standards.” Marne Cot, Organic Agriculture Under the Trump
Administration, 13 J. of Food Law & Policy, 125 (2017).
Another noted a growing distinction between “Big Organic”
and organic as a kind of religion or social movement. A. Bryan
Endres,An Awkward Adolescence in the Organics Industry: Com-
ing to Terms with Big Organics and Other Legal Challenges for the
Industry’s Next Ten Years, 12 Drake J. Agric. L. 17, 19 (2007).
recommendation and did not issue any guidance on hydropon-
ics and their use of the organic label.
NOP inaction resulted in some agents certifying hydro-
ponic operations as organic, while other certifying agents did
not. The lack of consistency among certifying agencies and
the lack of standards for hydroponic growing systems led to the
NOSB’s holistic review and the recommendation presented
and voted on at the November 2017 meeting.
In advance of the November 2017 meeting, the Crops Sub-
committee of the NOSB submitted its recommendation on
Hydroponics and Container Growing in August 2017. NOSB,
Proposals and Discussion Documents, 82–84 (October 2017).
In its proposal, the subcommittee noted a divide on this issue.
“[Some] think that organic certication should require plants
be grown in soil that is connected to the earth’s surface. Oth-
ers think that organic certication should allow the growing of
plants in pure nutrient solution, without the presence of any
soil or compost.” Id. at 63.
The subcommittee also summarized the comments it
received from the public, including organic farmers. Those in
favor of prohibiting hydroponics from being labeled organic
“discussed the foundational principles of organic as originating
with care and improvement of the soil and the overall ecosys-
tem [including] longer-term improvements such as the use of
nitrogen-xing crops, cover crops for improved organic mat-
ter, and an overall regenerative system that protects water and
wildlife as well as supporting biodiversity.” Id. at 75. In essence,
hydroponics does not meet the letter or spirit of OFPA and its
regulations.
Siding with those in favor of prohibiting hydroponics, the
subcommittee argued that hydroponics undermines the integ-
rity of the USDA organic program. Both OFPA and the NOP
regulations were written with the understanding that the foun-
dation of organic farming is soil management. References
to “soil fertility” exist in both the law and the regulations
implementing the law, leading to the conclusion that soil is
fundamental to organic agriculture. Id. at 74. While noting
that hydroponic systems can be productive cropping systems
appropriate for specic situations, the subcommittee ultimately
concluded that such systems are not compatible with the prin-
ciples of organic production and, as a result, they should be
disqualied from organic certication. Id. at 74. The subcom-
mittee proposed dening hydroponics in the regulations and
requiring that to carry any one of the three organic labels, “the
The hydroponics vote is
not the only event to have
threatened the integrity of the
organic program. The organic
label has undergone increased
criticism as claims of fraud and
dilution are reported.
NR&E Summer 2018 4
Published in Natural Resources & Environment Volume 33, Number 1, Summer 2018. © 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
health, social fairness, and animal welfare. Standards for these
pillars are expected to be released in March 2018 with small
pilot programs beginning shortly thereafter. The regenerative
organic standard builds on the standards set forth by USDA
Organic and similar programs internationally, particularly in
the areas of animal welfare and farmer and worker fairness.
A more recent proposal, that appears to be in direct
response to the hydroponic vote, is the Real Organic Project,
which proposes a new “Add-On” label to represent the organic
farming. It will use USDA certication as a base, but it will
have a small number of critical additional requirements to dif-
ferential itself from hydroponics, for example.
While disappointed by the hydroponic vote, organic
farmers appear more committed to organic practices than
ever before. Rather than abandoning the USDA organic
program completely, however, these farmers appear poised
to build on it in an effort to reclaim control and maintain
the authenticity of the organic program they worked so hard
to create. Perhaps the hydroponic vote was not the end of
organic, but the beginning of the next chapter of the organic
movement.
The commercialization of organic not only impacts the
integrity of the USDA organic program but also disadvantages
smaller organic farmers. The so-called “Walmart effect” may
squeeze out smaller, higher-cost producers from the organic
marketplace. Id. at 26. Professor Endres has warned that the
organic market may “bifurcate” with two distinct units: an
industrial scale market with organics being produced for gro-
cery stores and a “beyond organic” market that forgoes the
organic certication process and focuses more on the social
and local aspects of farming. Id. at 56–57.
The NOP’s integrity is put at further risk when the NOSB’s
integrity is threatened. Some argue that the board is stacked,
susceptible to the inuence of Big Organic. As one longtime
organic farmer put it, the board is made up of people who
“[e]ither they don’t have a clue, or their interest in making
money is more important than their interest in maintaining
the integrity of organics.” Stephanie Strom, Has “Organic”
Been Oversized? New York Times, July 8, 2012, at BU1. A
former NOSB member who retired last summer observed
“that industry has an outsized and growing inuence on
USDA—and on the NOSB (including through NOSB
appointments)—compared to the inuence of organic farmers,
who started this organic farming movement.”
Although allowing hydroponics to carry the organic label
is viewed as weakening the NOP, efforts are under way both
to improve the OFPA and to reclaim the original goals of
organic farming. One response is to strengthen existing leg-
islation. Congressman John Faso (R–NY) introduced the
Organic Farmer and Consumer Protection Act of 2017, to
“crack-down” on fake organics and support organic farmers.
This bill requests $24 million over ve years to the help carry
out the activities of the OFPA. In addition, it calls for modern-
izing international trade tracking and data collection systems
and for collaborative investigation and information sharing to
reduce fraud. H.R. 3871, 15th Cong. 2017.
Another response has been the creation of new standards.
One such proposal is the “regenerative organic” standard to
ll in gaps in the current USDA organic rules. The regenera-
tive organic standard was launched by the Rodale Institute
to “increase soil organic matter over time, improve animal
welfare, provide economic stability and fairness for farmers,
ranchers, and workers, and create resilient regional ecosys-
tems and communities.” The three pillars of this label are soil
The commercialization of
organic not only impacts the
integrity of the USDA organic
program but also disadvantages
smaller organic farmers. The
so-called “Walmart effect”
may squeeze out smaller,
higher-cost producers from the
organic marketplace.
