Dive Brief:

The Center for Food Safety and several organic farmers and stakeholders filed a lawsuit in federal court this week against USDA, demanding the federal government grant a petition filed last year to no longer allow hydroponic crops to be certified organic.

According to a release from the coalition filing the lawsuit, the group says USDA's denial last year of a petition that would make this prohibition was "arbitrary, capricious and contrary to our federal organic law." The plaintiffs — which also include Swanton Berry Farms, Full Belly Farm, Durst Organic Growers, Terra Firma Farms, Jacobs Farm/Del Cabo Inc., Long Wind Farm, OneCert Inc. and the Maine Organic Farmers and Gardeners Association — argue that the 1990 Organic Foods Production Act, which established the organic program, mandates organic crop production must "foster soil fertility." Since hydroponic farming is done without soil, the plaintiffs argue it cannot meet the standards of the federal law and therefore should not be allowed to gain certification.

The lawsuit seeks to reinstate the petition filed last year, invalidate all current organic certifications for hydroponic crops and prohibit new certifications to be issued to growing operations that do not use soil. "Healthy soil is the foundation of organic farming," Andrew Kimbrell, executive director of plaintiff Center for Food Safety , said in the release. "Organic farmers and consumers believe that the Organic label means not just growing food in 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.'"

Dive Insight:

This is the latest battle in the long war about whether hydroponic crops can be certified as organic. So far, the hydroponic operations have been victorious at every turn — though those fighting against them have not given up.

The issue has been contentious and unresolved since the organic program started. In 2010, the National Organic Standards Board, which makes nonbinding policy recommendations to USDA, published a recommendation stating soil should be a requirement of organic farming, thus hydroponic systems don't meet the federal definition. But the recommendation never translated into policy, and USDA created a task force to study the issue more in 2015.

The Cornucopia Institute, an organic watchdog group, filed formal legal action in 2016 asking the USDA's National Organic Program to investigate and rescind organic certifications to specific growers using hydroponic methods of cultivation. NOSB members tabled a vote on whether to prohibit certification for these growers weeks after that action was filed. The board voted 8-to-7 against a ban on hydroponic certification in late 2017. The USDA followed those recommendations with new policy clarifications about hydroponic organic certification in early 2018.

But groups, like the Center for Food Safety and Cornucopia, have continued the fight. In December 2018, Cornucopia published a report saying hydroponic agriculture dilutes the strength of the organic certification. In a release about the report, then-Cornucopia Executive Director Mark Kastel said these hydroponic operations are "egregious in the production of organic food, as consumers are willing to pay a premium based on published research indicating true organic management practices result in nutritional superiority and flavor." Along with the study, the group put out a buyer's guide to let consumers know which certified organic products are grown via hydroponics. The guide and report did not result in any policy changes.

With all of that in the past, it's not surprising that USDA didn't take action on the Center for Food Safety's petition last year. However, this lawsuit brings the question of hydroponic certification before someone other than USDA for the first time. Those against organic hydroponic certifications have said that large corporations that use soil-free farming methods, such as Driscoll's, have used their large investments in the method to persuade the board to let them remain certified. Some of the hydroponic growers have also touted their relatively large yields. Plenty, which promotes indoor vertical farming, sent the NOSB a statement in 2017 saying its organic growing system has yields of up to 350 times that of traditional farming and can be located anywhere consumers are.

How a federal court will feel about the issue could be much different. The court will be focusing on the intent of the law establishing the organic program.

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