The question of whether hydroponic production can be certified as organic now rests with a panel of federal appeals court judges, who seemed to be inclined to affirm a lower court decision allowing such certification.

The Center for Food Safety and organic farming operations have been challenging the Agriculture Department’s decision to allow products from hydroponic operations to attain organic certification. They contend that soil fertility is an integral, and required, element of organic farming, and not requiring it for hydroponic operations gives them an advantage over organic growers who must meet a raft of requirements to be certified. Last year, a federal district court judge backed USDA.

But CFS attorney Sylvia Wu encountered a couple of skeptical judges on the three-judge panel, who questioned whether the law establishing the organics program expressly prohibits hydroponic operations from being certified as organic.

“This appeal is about whether soil building is an essential component for organic crop production in this country,” Wu said. “The answer is yes — the word organic and organic farming refers to soil organic matter."

Organic crop production plans require that organic farmers build soil fertility, she said.

But Senior Circuit Judge Susan Graber quoted the Organic Foods Production Act of 1990 as specifying that “if a production or handling practice is not prohibited or otherwise restricted,” it is permitted unless it is inconsistent with the organic certification program.

Court of International Trade Judge Miller Baker, sitting on the panel by designation, questioned why hydroponics cannot be considered organic by virtue of its use of a medium without soil.

“Isn't it true that simply by not using soil, ... hydroponic farming actually fosters fertility because it's not depleting the soil?” he asked.

Wu, however, said that while “it's possible that one can construe it that way,” that was not USDA’s reasoning when it denied a petition submitted by CFS and others in 2019 that asked USDA to “prohibit organic certification of hydroponic operations that do not work with or build soil,” as CFS has said.

“USDA just waived the requirements,” Wu said, and concluded “it doesn't matter whether or not hydroponic productions foster soil fertility,” as is required of the organic farming operations she represents.

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Justice Department attorney Daniel Winik said the case “presents the basic question of whether the statute compels the conclusion that hydroponically grown crops can't be certified as organic.”

The statute, he said, “doesn't compel that conclusion. There's no basis for the court to set aside the denial of the rulemaking petition or require the revocation of all existing organic certifications for hydroponically grown crops as plaintiffs suggest.”

“The soil fertility requirement applies to crop production farm plans,” Winnik said. “As my friend noted, the statute doesn't define such plans; we know that they apply only to the production of crops on farms.” 

Winik also noted that the OFPA does not define “farm,“ but “does provide a very good indication of what is meant by the word ‘farm’ standing alone, which is that when it defines a certified organic farm as a term of art, it defines it to mean ‘a farm, or portion of a farm, or site where agricultural products or livestock are produced.’”

His conclusion: “If you were thinking about in which of those buckets a hydroponic operation fits, it’s obviously far more natural to consider it a site where agricultural products are produced than to consider it a farm.”

The third jurist on the panel, Circuit Judge John Owens, did not ask any questions. 

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