By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently working on a book about textile artisans.

The United States Department of Agriculture (USDA) proposed a new rule on Friday that shelves a previous rule that would have set minimal living conditions for hens that produce eggs certified as “USDA Organic”.

Under this new rule, chickens that produce organic eggs need not be treated any more humanely than those raised on factory farms.

On January 19, 2017– the day before Trump was inaugurated– the USDA had adopted a rule that would have set some basic animal welfare standards for organic livestock and poultry products. In addition to avian living conditions, the rule included provisions for livestock handling and transport for slaughter, and expanded and clarified requirements for livestock care and production practices, and for mammalian living conditions. The measures were initially due to come into effect in March, but were delayed by the incoming administration..

According to a recent Consumer Reports survey, 60% of those surveyed believe it is highly important that the animals used to produce organic food are raised on farms with high standards of animal welfare. And 83% of consumers who identify themselves as regularly buying organic eggs say it’s highly important that hens who produce organic eggs are allowed to move freely outdoors.

Now, regardless of their beliefs that animal welfare is important, I honestly don’t know whether consumers understand that the organic label doesn’t certify that animals are raised according to sustainable, humane farming practices. But many of the big farming interests that seek organic certification want consumers to think so. As the Washington Post reports:

[Mark Kastel of the Cornucopia Institute, which has long sought stricter standards and stricter enforcement from the USDA] and others accused those large nominally “USDA Organic” farms of fooling consumers regarding animal welfare at their facilities. “They are trying to trick the public and sell their products at a premium under a deficient organic label,” said Wayne Pacelle, president and CEO of the Humane Society of the United States. “They want the profit that comes from the halo effect of the organic label, but they don’t want to adhere to common-sense animal welfare standards. I don’t think consumers think that organically raised animals are living in a giant confinement shed.”

And Friends of the Earth also criticized last week’s USDA decision, according to Oregon’s The Bulletin,

“Trump’s decision to cave to a handful of powerful agribusiness interests by scrapping the organic animal welfare rule is a slap in the face to organic farmers and to the millions of consumers who have put their trust into the organic label,” said Lisa Archer, the food and agriculture program director for Friends of the Earth.

What Do the Producers Say?

Well, it depends on which ones you ask. According to The Bulletin, “Smaller producers who provide open yards for egg-laying hens have complained that the loophole lets competitors reap the premium price of organic eggs without substantially changing their operations.”

Exactly.

And, what about the behemoths themselves? Over to The Bulletin:

Livestock and poultry companies, however, complained that the rules went beyond the intent of the original law establishing organic certification, which covered only feed and medicine.

I see.

Organic Standards Co-Opted

Okay, I confess, I share the outrage over allowing producers to charge a premium price for a factory-farming product. But I do realize the organic label has long been co-opted, and that merely buying organic doesn’t really mean one’s buying the humanely, sustainably-raised food that one wants to eat. (Nor, I should mention, is it in any way locally-produced– but that’s another discussion.)

Yet deficient, watered-down organic standards aren’t a new problem. And I wonder where the previous administration was during it’s eight years in power– and why it took until the very eve of Trump’s inauguration for the USDA to promulgate the (extremely modest) standards that were just shelved.

I also think it’s a bit rich that the Organic Trade Association sued the Trump USDA for its “slow pace” in enacting the January 2017 rules, as the Bulletin mentions:

The Organic Trade Association, which has sued the USDA over its slow pace on enacting the rules, said it was “dismayed” at Agriculture Secretary Sonny Perdue’s announcement. The lawsuit is still pending.

“This groundless step by USDA is being taken against a backdrop of nearly universal support among the organic businesses and consumers for the fully vetted rules that USDA has now rejected,” the association said in a written statement.

The current USDA crew may have since January delayed implementing some last-minute rules. But their predecessors had eight years to establish standards. Why weren’t they in place much, much, earlier?

This failing, by the way, isn’t limited to the USDA, but applied to many other regulatory initiatives undertaken by the previous administration. The failure to promulgate regulations until late in the day meant that these were ripe for overturn if any Republican won the 2016 election (especially if backstopped by a Republican-controlled Congress). Trump and Congress have seized the authority provided by the Congressional Review Act to advance its deregulatory agenda (see here, here, here and here). These draconian procedures could not have been invoked if rule-making procedures had been completed earlier in the previous administration. Additionally, other initiatives, such as the Clean Power Plan, would have been less vulnerable to scuttling if they’d been implemented earlier.

The survival of these regulatory initiatives wouldn’t solely be due to superior legal arguments, either. One reason the fiduciary rule has not been killed outright is that companies had taken steps to comply with it, and once these steps are taken– and considerable investments made– they have no wish nor incentive to see a policy reversal, and in fact, actively resist such a change (see my further discussion in Fiduciary Rule: Helps Not Hurts Wall Street, So Full Rescission Unlikely). So, although Trump clearly had this rule in his deregulatory crosshairs, the Labor Department has gone forward with the new rule (albeit subject to some delays).

Back to the chickens and their eggs. The previous administration is now enjoying a reputation for regulatory innovation that’s not supported by its record. So it’s not surprising this should extend to something as basic as chickens and eggs.

The sad standard for what qualifies to be called an organic egg didn’t miraculously hatch last week. Too little was done, too late, before Trump became president, and in part is the reason we’re where we’re at today.