“Although animal welfare is an important USDA priority, AMS believes that the [Organic Foods Production Act of 1990’s] reference to additional regulatory standards ‘for the care’ or organically produced livestock is limited to health care practices similar to those specified by Congress in the statute, rather than as reflecting a stand-alone concern for animal welfare,” such as that outlined in the OLPP final rule, USDA explains in a Federal Register notice published Nov. 9.
The agency goes on to say that the final rule, which outlines how much space organic animals need, what types of medical procedures are allowed and when, and how to humanely transport animals to slaughter, is inconsistent with USDA regulatory policy principles.
“The rule may not represent the most innovative and least burdensome tools for achieving regulatory ends; may impose costs that are not justified by the potential benefits; and may not reasonably be tethered to the OFPA’s statutory text, nature and purpose,” it explains.
A less subjective objection to the final rule raised by the agency is its belief that there is a “significant, material error in the mathematical calculations of the benefits estimates,” according to the notice.
It explains that the original calculation of benefits is flawed because “the incorrect calculation was applied for the 3 percent and 7 percent discount rates. Re-analysis using the correct mathematical calculations suggest that this error was material,” and it is therefore “not appropriate” to push the final rule forward without public comment on the revised calculation of benefits.
Based on these arguments, the agency is delaying the effective date again until May 14, 2018. This is the second delay for the rule, which was caught in the Trump Administration’s blanket delay of rules passed under the Obama Administration but not yet implemented.
The decision runs counter to most stakeholders’ desires and, in fact, only one out of the more than 47,000 comments submitted to USDA argued to delay the rule. Rather, 40,000 of the comments advocated for implementing the rule as-is. A mere 28 asked for it to be withdrawn and only “a few” said to suspend it, according to the Federal Register notice.
Stakeholders are outraged
Given the immense discrepancy between stakeholders’ wishes and the regulator’s actions, the industry’s subsequent outrage at the decision should be expected.
The National Organic Coalitions executive director Abby Youngblood said she was “deeply alarmed” by the decision to delay rules which were collaboratively constructed over more than decade with input from farmers, consumer groups, the organic industry and other stakeholders.
“It is the USDA’s job to protect the integrity of the organic seal – we urge the administration to allow the rule to go into effect and to respect the wishes of thousands of producers who voluntarily choose to participate in the organic certification program and are overwhelmingly in favor of this new regulation,” she said in a statement.
OTA takes USDA to court
The Organic Trade Association’s response goes beyond chastising and pleading with the agency. Rather, OTA has filed a lawsuit against USDA for the delay of the rule, which has “nearly universal support among the organic community, animal welfare advocates and consumers,” it says in a statement.
It adds: “We will continue this fight in the court, where a federal judge will evaluate whether the Administration has wrongly ignored the laws that require consultation with the National Organic Standards Board and those requiring informing the public and providing consumers a chance to comment on organic policies, before they take effect.”
The Consumers Union also is chiming in against the delay, arguing in a statement that failure to implement the final rule will undercut the value and trust consumers place in the organic seal.
“Consumers who buy organic expect farmers to follow strict standards, including rules to help ensure the health and well-being of animals. But without this rule, consumers will have no way of knowing if eggs or chicken labeled organic come from birds that were able to roam outside or whether their only outdoor access was a tiny porch,” Charlotte Vallaeys, senior policy analyst with Consumers Union, said in a statement.
For support, she points to a Consumer Reports survey that found 86% of consumers who often or always buy organic say its highly important that animals used to produce these foods are raised according to high standards of animal welfare.
She adds, failure to implement the rule “is not what consumers expect.”