Hydroponics, including Aeroponics and Aquaponics, have been a hotly debated topic in the organic’s world since at least 1995. The main issue is whether or not plants grown without soil can be labeled USDA certified organic. Hydroponics is the process of growing plants in a water and nutrient solution. Aquaponics is the process of growing plants in a system that combines aquaculture, raising aquatic animals, and hydroponics. Aeroponics is the process of growing plants with no soil and misting or spraying the roots of the plants with water that contains water soluble nutrients. Some in the organic community take issue with labeling these soil-less methods as organic because they do not involve the improvement of soil as required by the Organic Foods Production Act (OFPA). However, others state that soil-less methods are covered under the USDA organic standards. While still others state that more details need to be added to the standards to properly include soil-less methods. In the past 25 years, several actions have been taken to attempt to remove the USDA organic label from soil-less methods. The following discusses how organic production systems are certified and some of the major efforts taken to allow or prohibit hydroponic systems.
The National Organic Program and The National Organics Standards Board
The National Organic Program (NOP) is a federal program tasked with developing and enforcing standards for organically produced agricultural products. The National Organics Standards Board (NOSB) is a committee appointed by the Secretary of Agriculture whose purpose is to “assist in the development of standards for substances to be used in organic production and to advise the Secretary on any other aspects of the implementation of OFPA.” The creation of the NOP and NOSB is authorized by the OFPA. The NOSB charter lists the key activities of the Board as follows: “assisting in the development of organic standards and regulations; reviewing petitioned materials for inclusion on or deletion from the National List of Approved and Prohibited Substances (National List); recommending changes to the National List; communicating with the organic community, listening to public comments at public meetings; and communicating and coordinating with the Agricultural Marketing Service National Organic Program (NOP).” Generally, the NOSB is tasked with conducting research and soliciting public comment on issues and then making a recommendation for rulemaking to the NOP based on their findings. Many of the actions taken to remove or allow the organic label on soil-less methods start with the NOSB. Whether that be petitions or comments to the NOSB or motions and recommendations from the NOSB to the NOP.
The NOSB has made many comments on the inclusion or exclusion of hydroponics as certified organic, yet none have resulted in rulemaking activity by the NOP. In 1995 NOSB stated “hydroponic production in soilless media to be labeled organically produced shall be allowed if all provisions of the OFPA have been met.” Then, in 2003, the NOSB prepared a guidance document for hydroponics and other “soil-less” growing systems, but did not present any final recommendations to the NOP for approval. The NOSB recommended that NOP wait until NOSB provided a rulemaking recommendation before proceeding with any rulemaking for hydroponics.
In 2008, the Crops Subcommittee of the NOSB discussed guidance statements that would limit organic hydroponics to aquatic plants, however, this topic was never sent to the full NOSB for a vote. Following this discussion, at a 2009 NOSB meeting, the Crops Subcommittee report stated: “Hydroponics . . . certainly cannot be classified as certified organic growing methods due to their exclusion of the soil-plant ecology intrinsic to organic farming systems. . . . ” The NOP failed to adopt this recommendation, but instead stated that due to the complexity of hydroponic systems, further information and review were necessary before guidance could be released. Later that year at the September 2009 NOSB meeting, the NOSB presented a recommendation for federal rulemaking that would add specific rules for Greenhouse Production Systems while prohibiting hydroponic systems. After the public comment period, the Crops Subcommittee wrote a new recommendation called Production Standards for Terrestrial Plants in Containers and Enclosures. The full NOSB approved the document, and made a formal recommendation for approval by the USDA, which was submitted to the NOP on April 29, 2010. The recommended regulation prohibited hydroponic and aeroponic systems stating: “Growing media shall contain sufficient organic matter capable of supporting natural and diverse soil ecology. For this reason, hydroponic and aeroponic systems are prohibited.” While this recommendation was submitted to the NOP, no rulemaking action prohibiting the stated hydroponic systems was undertaken.
Later, in 2015, the NOP established a Hydroponic/Aquaponic Task Force to prepare a report to the NOSB to provide additional information and industry expertise that may not have been available to the groups in the past. The task force presented an extensive report in 2016 to the NOP and NOSB. To the dismay of many, the report took no definitive stance on the issue, stating that there were options for both certifying hydroponics as organic and withholding the certification.
In the fall 2017 NOSB meeting, motions to prohibit hydroponic, aquaponic and aeroponic systems were discussed and voted on. The NOSB only passed the motion to prohibit aeroponic systems in organic production. The NOSB recommended removing aeroponics as organic while allowing hydroponic and aquaponic systems to remain eligible for certification.
USDA 2018 Statement
Following the fall 2017 NOSB meeting and discussion on hydroponics, aquaponics and aeroponics, USDA released a clarifying statement regarding the Agency’s position. USDA stated “certification of hydroponic, aquaponic, and aeroponic operations is allowed under the USDA organic regulations, and has been since the National Organic Program began.” USDA also noted the NOSB recommended prohibiting aeroponics and further stated their intent to consider this recommendation. As of November 2020, USDA has not initiated any action on this recommendation.
Center for Food Safety Petition
On January 16, 2019 the Center for Food Safety (CFS) filed a petition formally asking USDA to engage in rulemaking to prohibit organic certification of hydroponic operations in response to USDA’s 2018 statement. The petitioners made three claims: (1) because hydroponic operations do not build healthy soils, they are not in compliance with the organic regulations; (2) hydroponics violate OFPA’s consistency requirement because they failure to adhere to OFPA’s soil fertility requirements; and (3) hydroponic operations violate OFPA’s implementing regulations requiring improvement of soil quality, management of soil fertility, use of crop rotation practices, conservation of biodiversity, use of other soil management practices, and use of soil samples to measure compliance with OFPA.
The petition requests four specific relief actions: issuance of a regulation that excludes certification of hydroponic production; amend 7 C.F.R. 205.105 to prohibit hydroponics; “ensure ecologically integrated organic production practices are maintained” in accordance with OFPA; and revoke organic certifications for currently certified hydroponic operations. In essence, the petition asked USDA to reverse its 2018 position statement and take actions consistent with a reversal of the statement. However, despite CFS’s efforts, the USDA denied the petition on June 6, 2019.
Center for Food Safety Lawsuit
In March of 2020, CFS along with a group of organic farmers and stakeholders (Plaintiffs) filed a lawsuit in the Northern District of California which challenges the USDA’s decision to allow hydroponic operations to be certified organic through their 2018 statement and denial of the 2019 CFS petition. The Plaintiffs allege four causes of action all relating to violations of OFPA and the Administrative Procedures Act (APA): (1) the denial of the petition based on an exception for soil-less systems is beyond USDA’s authority and contrary to law; (2) the petition denial is contrary to OFPA’s implementing regulations; (3) the denial of the petition is arbitrary and capricious and contrary to law; and (4) the petition denial results in inconsistent organic standards. CFS has filed for summary judgment with a hearing set for January 21, 2021. Plaintiffs have requested varying forms of relief including: a preliminary and permanent injunction barring USDA from authorizing organic certification to hydroponic operations; declarations affirming their allegations; a mandate that vacates the denial of CFS’s petition; and requiring USDA to promulgate regulations that prohibit organic certification of hydroponic operations.
At the October 2020 meeting of the NOSB, hydroponic operations were again discussed briefly. Several public comments addressed concern over the continued certification of organic hydroponic systems. However, again no concrete actions were taken as a result of this discussion. There is a certain hesitancy in attempting to change the Agency stance on hydroponic operations as shown through at least 25 years of inaction on the matter. The CFS lawsuit will be one to watch because it could result in USDA and NOP being forced into rulemaking on the issue. This could affect hydroponic growers in a few ways. If the NOP is required to promulgate a rulemaking action, the proposed rule could immediately suspend the organic certifications for growers, or, as proposed in some NOSB meetings, the organic certificates for hydroponic growers could be gradually phased out. Based on the NOSB’s desire to cause as little market disruption as possible, they would likely recommend phasing out organic certificates for hydroponic growers to the NOP.
To view the Center for Food Safety’s Complaint, click here.
To view the Center for Food Safety’s 2019 Petition, click here.
To view the 2016 Hydroponics Task Force Report, click here.
To view the 2018 USDA statement on hydroponics, click here.
For more information on food labeling, visit the NALC’s Food Labeling Reading Room.
For more information on organics, visit the NALC’s National Organic Program Reading Room.