GMOs in USDA Organic Food

Brendan Bombaci

Heaven and Earth

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I have done some digging.  I haven’t been exactly pleased with what I’ve found, nor have I been thoroughly surprised, being that the US government collaborates so heavily with the GM and pesticide industry.  But then, this could all be just one big mistake.  Take a look…

USDA  2013    What is Organic? National Organic Program: Welcome to the National Organic Program. United States Department of Agriculture: Agricultural Marketing Service. Data accurate to 5 February.

First, we have a PR statement from the USDA Agricultural Marketing Service website, under the Organic Standards subsection of the National Organic Program page, proclaiming about organic crops (to consumer) that:

“Organic is a labeling term that indicates that the food or other agricultural product has been produced through approved methods. These methods integrate cultural, biological, and mechanical practices that foster cycling of resources, promote ecological balance, and conserve biodiversity. Synthetic fertilizers, sewage sludge, irradiation, and genetic engineering may not be used” [USDA 2013, emphasis added].

But then, to our dismay, we see something completely different, proclaimed to growers:

USDA 2013    Guide for Organic Crop Producers. FAQ: Becoming a Certified Operation. USDA National Organic Program. http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5101542. Accessed 10 April 2013.

“Chapter 9 “The National List of Allowed and Prohibited Substances” explains how to determine if a product is allowed or prohibited. Certain practices, while not allowed in organic production, would not constitute application of a prohibited material, and so would not render land ineligible for certification during the transition period. Examples include the use of nonorganic seed or planting stock, application of manure to a food crop within 90 days of harvest, and cultivation of genetically modified crops” [USDA 2013:7-8]

So we see a double-standard.  We have some investigating to do.  It’s time to see beyond the PR statements and into the written organic standards law.  The following is taken from the Electronic Code of Federal Regulations for the USDA National Organic Program, under the U.S. Government Printing Office (GPO) with data accurate to April 1, 2013.

This is from the “terms defined” section of the organic regulations of America, found at an extension of www.ecfr.gov, linked easily through www.ams.usda.gov/AMSv1.0/nop, under “Organic Regulations.”

Title 7: Agriculture

PART 205—NATIONAL ORGANIC PROGRAM, Subpart A—Definitions

“Organic: A labeling term that refers to an agricultural product produced in accordance with the Act and the regulations in this part” [GPO 2013]. Keep in mind that it in no way means the status, of a currently living plant or animal, of having a genetic lineage that has never been submitted to genetic modification of any kind either before or during involvement with the USDA Organic Program.

So the term “organic” is loaded to begin with.  And you’ll be surprised to know that:

Title 7: Agriculture

PART 205—NATIONAL ORGANIC PROGRAM, Subpart C—Organic Production and Handling Requirements.  § 205.204   Seeds and planting stock practice standard

(I have abstracted a portion of this section for ease of reading because it is otherwise convoluted)           

“(a) The producer must use organically grown seeds, annual seedlings, and planting stock: Except, That,

“(1) Nonorganically produced, untreated seeds and planting stock may be used to produce an organic crop when an equivalent organically produced variety is not commercially available: Except, That, organically produced seed must be used for the production of edible sprouts; (2) Nonorganically produced seeds and planting stock that have been treated with a substance included on the National List of synthetic substances allowed for use in organic crop production may be used to produce an organic crop when an equivalent organically produced or untreated variety is not commercially available; (3) [in reference to §205.290(a)(2) — nonorganically produced annual seedlings may be used when there has been damage caused by drought, wind, flood, excessive moisture, hail, tornado, earthquake, fire, or other business interruption;] (4) Nonorganically produced planting stock to be used to produce a perennial crop may be sold, labeled, or represented as organically produced only after the planting stock has been maintained under a system of organic management for a period of no less than 1 year, and (5) Seeds, annual seedlings, and planting stock treated with prohibited substances may be used to produce an organic crop when the application of the materials is a requirement of Federal or State phytosanitary regulations [i.e., via Codex Alimentarius]” [GPO 2013].

This is all quite bothersome.  It seems that “organic” does not mean “safe from tampering.”  What sorts of “business interruptions” justify using non-organically produced annual seeds [from (3), above]?  I’m willing to bet that the dramatic effects on crops due to drought from climate change easily warrant such activity, under this clause; however, I just as easily would bet that it could mean anything in a court of law, from a lack of staff or machinery issues to financial losses in a particular quarter.  As vague as it is, a “business interruption,” could be any problem a corporation faces in making duplicated or better profits from year to year.  This is apparently a fully exploitable loophole.  Let’s look at it all in a bit more detail.

USDA 2013    Guidance: Seeds, Annual Seedlings, and Planting Stock in Organic Crop Production. NOP5029. National Organic Program. United States Department of Agriculture, Agricultural Marketing Service. Created 4 March. http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5102731. Accessed 12 April 2013.

From section 3.0: Background, “The USDA organic regulations at 7 CFR §205.204 require that organic producers use organic seeds, annual seedlings, and planting stock. The regulations allow producers to utilize non-organic seeds and planting stock when equivalent organic varieties are not commercially available” [USDA 2013:1]. Under section 4.1.3, “The following considerations could be acceptable to justify use of non- organic seeds and planting stock as not commercially available. These considerations must be described by the operation in their organic system plan (OSP), pursuant to §205.201(a)(2), and approved by the certifying agent.  […b.] Quality Considerations: Examples may include, but are not limited to, germination rate of the seed; presence of weed seeds in the seed mix; shelf life and stability of the seeds; and disease and pest resistance. […c] Quantity Considerations: Producers may provide evidence that quantities are not available in sufficiently large or small amounts given the scale of the operation” [USDA 2013:2].

Of benefit for consumers is that, under section 4.2: Recordkeeping for Organic Producers, “4.2.1 The following records should be maintained by organic producers: (a.) A list of all seed and planting stock, indicating any non-organic seeds or stock used, and the justification for their use including lack of equivalent variety, form, quality or quantity considerations” [USDA 2013:3].

Furthermore,

USDA 2011    Instruction: Processing Requests for Temporary Variances. NOP2606. National Organic Program. United States Department of Agriculture, Agricultural Marketing Service. Created 22 July. http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5087115. Accessed 12 April 2013.

From section 4.0: Policy, “Variances [such as weather damage and those “business interruptions”] will not be granted to allow for: (…2) The use of materials prohibited under §205.105” [USDA 2011:1, emphasis added].  Materials, mind you, do not include the excluded methods provision, as § 205.105 has different categories for what is allowed and prohibited, including that for substances, that for methods, and that for ingredients.

Helpfully, under section 6.0: Records, “NOP staff will maintain records of temporary variances granted on the NOP shared drive with a copy in the accredited certifying agents file under the relevant calendar year” [USDA 2011:2].

The records, pertaining to the details outlined in the last two sources cited, may be obtained utilizing the USDA’s Freedom of Information Act officer.

How is all of this possible?  Well, here’s where the mistake exists. The only place in the N.O.P., according to law (rather than just the USDA’s PR website), where genetic engineering is actually stated to be prohibited is in the terms defined section of their program law webpage.

Title 7: Agriculture

PART 205—NATIONAL ORGANIC PROGRAM, Subpart A—Definitions. “§ 205.2: Terms defined:

“Excluded methods. A variety of methods used to genetically modify organisms or influence their growth and development by means that are not possible under natural conditions or processes and are not considered compatible with organic production. Such methods include cell fusion, microencapsulation and macroencapsulation, and recombinant DNA technology (including gene deletion, gene doubling, introducing a foreign gene, and changing the positions of genes when achieved by recombinant DNA technology). Such methods do not include the use of traditional breeding, conjugation, fermentation, hybridization, in vitro fertilization, or tissue culture” [GPO 2013, emphases added].

Notice how these are excluded methods (while under certified organic production) and nowhere is it stated that already genetically modified seeds or crops cannot be used for the purposes of organic production.  There is no “excluded lifeforms” provision.

Now that we have that all cooked up, how about livestock?

Title 7: Agriculture

PART 205—NATIONAL ORGANIC PROGRAM, Subpart A—Definitions.  §205.236   Origin of livestock.

“(a) Livestock products that are to be sold, labeled, or represented as organic must be from livestock under continuous organic management from the last third of gestation or hatching: Except, That: (1) Poultry. Poultry or edible poultry products must be from poultry that has been under continuous organic management beginning no later than the second day of life; (2) Dairy animals. Milk or milk products must be from animals that have been under continuous organic management beginning no later than 1 year prior to the production of the milk or milk products that are to be sold, labeled, or represented as organic, Except,

(i) That, crops and forage from land, included in the organic system plan of a dairy farm, that is in the third year of organic management may be consumed by the dairy animals of the farm during the 12-month period immediately prior to the sale of organic milk and milk products; […] (3) Breeder stock. Livestock used as breeder stock may be brought from a nonorganic operation onto an organic operation at any time: Provided, That, if such livestock are gestating and the offspring are to be raised as organic livestock, the breeder stock must be brought onto the facility no later than the last third of gestation” [GPO 2013, emphasis added].

It’s already bad enough that the plants and seeds used in USDA organic standards (for direct consumption by both humans and animals) can be of genetically modified stock, and possibly exposed to pesticides and radiation by Codex Alimentarius standards whenever deemed necessary.  But then the livestock can be directly, or by lineage, genetically modified — even biopharmed, hormone altered, exposed to those non-organic foods as well as pesticides, all up to the last third of gestation or hatching, or in the case of dairy, up to the last year of production?  I think we need to distinguish between “Pesticide-Free” (USDA Organic) and “Non-GMO,” at the very least.  If there was one label that could guarantee both, we’d be better off.  The Non-GMO Project organization aims for that, and their standard testing covers 99.1% of genes (there could always be up to 0.9% GMOs in your food).  They review and label many foods today, so keep your eyes out for them.  If their label is on a product with a USDA Organic label on it, too, all the better!

Now, bits of a memorandum that was made by the Deputy Director of the National Organic Program, Mr. Miles McEvoy, to address the public with their concerns about GMOs possibly being in USDA NOP certified organic foods:

McEvoy, Miles 2011    Policy Memorandum. Policy Memo 11-13: Clarification of Existing Regulations Regarding the Use of Genetically Modified Organisms in Organic Agriculture. USDA Agricultural Marketing Service. National Organic Program Handbook. Guidance and Instructions for Accredited Certifying Agents and Certified Operations. Created 15 April.

http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5090396. Accessed 10 April 2013.

“The use of GMOs is prohibited in organic production and handling. The NOP regulations prohibit the use of GMOs as “excluded methods” under 7 CFR §205.105” [McEvoy 2011:1], and, “the use of excluded methods, such as planting genetically modified seeds, would require a specific intent, and would render any product ineligible for organic certification” [McEvoy 2011:2].

But we’ve already gone over that section, haven’t we?  This isn’t a total truth.  “planting genetically modified seeds” is not an excluded method, and neither is using them; only the process – the method – of genetic modification is prohibited.  Let us be clear.

Furthermore, it seems that outsourced Certifying Agents handle everything in regards to GMO detection:

“That is, certifying agents attest to the ability of organic operations to follow a set of production standards and practices which meet the requirements of the Organic Foods Production Act of 1990 and the NOP regulations,” and “if all aspects of the organic production or handling process were followed correctly, then the presence of a detectable residue from a genetically modified organism alone does not constitute a violation of this regulation” [McEvoy 2011:2, emphasis added].

In fact, even though “certifying agents evaluate the preventative practices and buffer zones [of the producer’s farm] to determine if they are adequate to avoid contact with GMOs,” and they “are responsible for working with organic producers to identify the source of [any] inadvertent GMOs and to implement improvements to avoid contact with GMOs in the future” [McEvoy 2011:3, emphasis added], if the seeds or stocks are in fact tested for the presence of GMOs, the NOP regulations only “establish a tolerance for the presence of pesticides registered by the U.S. Environmental Protection Agency (EPA) that is set at 5% of the EPA tolerance level for the specific residue detected,” whereas  “no federal agency, including EPA or USDA has established tolerance levels for the inadvertent presence of the products of excluded methods (GMOs)” [McEvoy 2011:4, emphasis added] so, if a certifying agent found GMOs in a company’s stock or product, that company might get a slap on the wrist, depending on the agent, and would otherwise lawfully get to keep their organic certification.

With a finishing touch, I would like to point out some facts about the organic standards in the European Union:

OJEU 2007    Council Regulation No 834/2007 of 28 June 2007 on Organic Production and Labelling of Organic Products and Repealing Regulation (EEC) No 2092/91. Regulations. Official Journal of the European Union.

Firstly, (9) “Genetically modified organisms (GMOs) and products produced from or by GMOs are incompatible with the concept of organic production and consumers’ perception of organic products. They should therefore not be used in organic farming or in the processing of organic products” [OJEU 2007:L189/2].

and, that:

in Title II; Article 4: “Organic production shall be based on the following principles:

[in (a)(iii)]: “exclude the use of GMOs and products produced from or by GMOs with the exception of veterinary medicine products;” [OJEU 2007:L189/6].

How so very complete and not misleading.  I like it.  Perhaps in the near future we will have such clarity in our own organic program. But probably not before Monsanto is completely protected from any trouble that probable contaminations may conjure up…

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Brendan Bombaci

Tags: agriculture, biotechnology, Farm Wars, farming, farmwars, GMO, loophole, monsanto, national organics program, nop, organic, USDA