Latest News

NMPF Files Comments to Origin of Livestock Docket, Using Plant-Based Analogy

December 9, 2019

NMPF used its opportunity to file comments to a USDA organic origin of livestock docket on Dec. 2 to keep organic-dairy farming accessible to farmers considering entry into or expansion within the business – and used a novel analogy connected to the plant-based foods debate to remind government regulators of their responsibilities.

The dairy-centered portion of the docket, which was the focus on NMPF’s comments, sought input on two key issues: how a one-time transition requirement is implemented, and how nonorganic breeder stock can properly be integrated into the organic program.

On the transition issue, NMPF emphasized in its comments that the transition from conventional to organic shouldn’t be tied to the producer, but instead to the certified dairy operation, arguing that eliminating a farmer’s ability to transition a second or a third farm from conventional to organic – which is being proposed by organic-farm advocates seeking to raise barriers of entry to their business — is overly restrictive and unnecessary.

NMPF and others cited numerous examples of how this could be problematic. For example, should a farmer transition a farm to organic, then decide to relocate to a different part of the country, that farmer could not transition another farm to organic. NMPF questioned whether such a restriction could meet constitutional scrutiny and is hopeful that USDA will revise its proposal on this issue and not deprive a farmer’s right to transition whatever farms he/she want to.

The second, more controversial issue, involves the use of nonorganic breeding stock to produce organic heifers. When Congress passed the Organic Food Production Act as part of the 1990 Farm Bill, it specifically stated that breeding stock from any source, organic or nonorganic, could be used to produce organic heifers if that breeding stock were organically managed for at least the last third of gestation.  NMPF believes this is appropriate, arguing that advocates who want only organic breeding stock to produce an organic heifer – again, reducing competition in the organic sector — are taking a position inconsistent with current law.

NMPF’s comments to USDA suggests that the agency either work with Congress to change the law or make it abundantly clear that when the rules are followed (e.g. currently a bred nonorganic cow must be raised organically for at least last trimester), nonorganic breeding stock can produce organic heifers. NMPF’s comments also note that from the time a heifer whose mother began feeding an organic diet to when that heifer is milked, that heifer would have spent at least 27 months managed as organic — much more time than the 12 months used for a one-time herd conversion, leaving no scientific basis for such a restriction.

Finally, the comments point out that there is no violation of the one-time transition rule when using nonorganic breeding stock, as that breeding stock never transitioned – tying the two issues in its main comments.


Inaction not an option 

NMPF also supplemented its comments with an additional filing to the docket, noting that whatever agencies may or may not want to do, their discretion to enforce or not to enforce their own rules is increasingly limited, as shown in a separate issue – NMPF’s urging of the FDA to enforce its own rules on plant-based beverages.

In the case of the transition allowance, NMPF argued that, rather than create a stricter standard that may not comply with law, a simple clarification that the Act is correct would ensure consistency. On the organic breeder stock, NMPF also pointed out that agencies don’t have discretion to enforce or change Congressional Acts.

Pointing out that a court recently ruled that FDA doesn’t have unfettered discretion not to enforce provisions that Congress has put in place, USDA doesn’t have this right either. Therefore, it shouldn’t entertain a rule that disputes the Organic Food Production Act.

“We cannot support FDA not enforcing the standards of identity for labeling food products, nor can we support FDA rewriting the Congressionally-enacted Butter Act,” NMPF wrote in its comments “By analogy, NMPF cannot support a USDA rewrite of the Congressional expression that nonorganic breeder stock can produce organic heifers when those heifers are raised and managed under the organic program requirements. USDA must finalize this part of the proposed rule as proposed, which allows for nonorganic breeder stock’s ability to produce organic heifers under rigorously mandated NOP conditions.”

The full comments can be found here.