On September 22, 2022, the Ninth Circuit Court of Appeals upheld a district court ruling that allows hydroponic produce growers to continue to sell their produce as organic. This is the latest development in an on-going debate where certain groups argue that under the Organic Foods Production Act (OFPA)—the legislation that Congress passed in 1990 that directed the USDA to create the National Organic Program (NOP)—hydroponics cannot be organic because they are not grown in soil. While the United States Department of Agriculture (USDA) argues hydroponics do fall under the definition of organic. This article briefly provides a history of the issue, and then explains the most recent court ruling.

What is Hydroponic Farming?

Hydroponic farms grow produce, usually in indoor facilities, without soil. Instead of getting nutrients from soil, the plant roots sit in a water-based solution that contains essential nutrients. Hydroponic farms are often called vertical farms because in a hydroponic facility there are often many rows of plants growing on what looks like vertically stacked shelves. As an industry, hydroponic farming is growing. Analyst estimate that the U.S. hydroponic market’s compound annual growth rate between 2021 and 2028 will be 19.7%, which indicates significant growth. Other methods of indoor soil-less farming include aquaponics and aeroponics. Although these industries are also seeing tremendous growth, the growth of hydroponics still outpaces them both.

Currently, hydroponic farms can grow and sell their produce as organic if they meet the criteria outlined in the OFPA and USDA’s regulations and are certified by a USDA accredited third-party organization. Hydroponic agriculture is not unique to the United States. Many countries have booming hydroponic industries, many of which sell some of their produce as organic in the U.S. market. Foreign organic growers wishing to import to the U.S. must still have their produce certified by a USDA authorized organization.

The Regulatory History of Organic Hydroponics

As explained in an earlier NALC article, the organic community has long debated whether USDA, via the NOP, should allow hydroponic produce to be certified organic. The debate centers around language found in the OFPA, which, among other things, requires all producers seeking organic certification to create an organic plan. In this plan, producers must include “provisions designed to foster soil fertility, primarily through the management of the organic content of the soil through proper tillage, crop rotation, and manuring.” 7 U.S.C. § 6513(b)(1). Those who argue that hydroponics and other soil-less production methods should not be certified organic, use this provision to argue that Congress did not intend soil-less production methods to fall under the definition of organic. On the other hand, USDA argues that this provision only applies if soil is involved in the growing of the organic food.

The National Organic Standards Board (NOSB) is a federal advisory board established by the OFPA that makes recommendations to the NOP on organic regulatory issues. The NOSB debated the organic hydroponics issue for years. However, the current litigation stems from a 2019 Center for Food Safety (CFS) petition. In its petition, CFS cites an NOSB recommendation that USDA should not certify hydroponics as organic. Therefore, CFS’s petition asked USDA to initiate rulemaking prohibiting organic certification of hydroponically produced foods.

Specially, CFS petitioned USDA to:

• Issue regulations excluding certification of hydroponic agricultural production.
• Amend 7 C.F.R. § 205.105, the regulations listing the allowed and prohibited substances, methods, and ingredients for organic production and handling, to prohibit hydroponic systems.
• Ensure the ecologically integrated organic production practices are maintained as a requirement for organic certification.
• Revoke any existing organic certifications previously issued to hydroponic operations.

In June 2019, USDA denied CFS’s petition. In the denial letter, USDA stated “NOP’s analysis concludes that organic hydroponic systems cycle and conserve resources in a different way from soil-based systems, however, that does not make them incompatible with the vision for organic agriculture expressed in the OFPA.” The denial letter goes on to say that hydroponic operations “produce food in a way that can minimize damage to soil and water, and that can support diverse biological communities.” In the denial letter, USDA argued that Congress intended the soil improvement provisions of the OFPA to apply only to those operations that use soil, and not necessarily to all organic operations.

CFS Sues USDA for Denying the Petition

In 2020, in response to the denial letter, CFS filed a lawsuit against USDA. In its complaint, CFS states that USDA “violated federal laws, …, in denying a legal rulemaking petition requesting USDA to prohibit organic certification of hydroponic operations”.  Primarily, CFS argued that “in recognition that the sound management of biological diversity and soil fertility is one of the foundational principles of organic farming, Congress specified in OFPA that organic crop production must ‘foster soil fertility,’ and mandated that agricultural producers incorporate soil-based management practices as part of organic crop production.”

On March 19, 2021, the Northern District of California granted USDA’s motion for summary judgment. This means that the court, based on the undisputed facts, disagreed with CFS’s complaint, and held that the OFPA allows USDA to certify hydroponically grown produce as organic. Specifically, the court found “USDA’s denial of the rulemaking petition reasonably concluded the applicable statutory scheme does not exclude hydroponics from the organic program.” After the decision was released, CFS filed an appeal to the Ninth Circuit Court of Appeals.

The Ninth’s Circuit’s Memo

In response to CFS’s appeal, the Ninth Circuit filed a memorandum of decision, meaning that although the court came to a decision, its decision “is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.” According to the Ninth Circuit, CFS argued that the district court failed to apply the Chevron deference doctrine, which is applied when determining whether an agency acted reasonably when promulgating a regulation. The Ninth Circuit found that the Chevron doctrine is not appropriate in this case because USDA never promulgated a regulation. Further, the Ninth Circuit held that “the OFPA does not clearly require USDA to issue the requested rule.” Therefore, the Ninth Circuit held in favor of USDA.

What’s to Come

Although both the Ninth Circuit and the District Court for the Northern District of California sided with USDA, the debate over whether hydroponics should be certified organic is likely not over. CFS may choose to appeal the Ninth Circuit’s decision by submitting a request for certiorari to the Supreme Court of the United States (SCOTUS). However, according to SCOTUS, it receives more than 7,000 requests for writs of certiorari a year, and only accepts 100-150. CFS, or other organizations, may again petition USDA to reconsider its stance on organic hydroponics. Another possible outcome is that USDA may choose to amend the organic regulations to codify its stance on organic hydroponics.

To read the Northern District of California’s order granting USDA’s motion for summary judgment, click here.

To read Ninth Circuit’s memorandum upholding the District Court’s order, click here.

To read CFS’s most recent press release related to this case, click here.

To learn more about organic agriculture, generally, visit NALC’s NOP reading room, here.

**This article was written by former NALC Staff Attorney Jana Caracciolo.