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Vol.26 |
agencies still allow use of questionable materials and inputs, such as
so-called "natural" Pesticides, usually highly adulterated with
"inert" solvents and carriers.12 Even worse, the
organic livestock producers have not been, and still are not, allowed to even put the word
"organic" on their U.S. Department of Agriculture-inspected meat labels until
the law is fully promulgated.13
This article attempts to chronicle, analyze
and scrutinize the OFPA and to search (or at least spawn a search) for other legal
remedies to prevent the demise of legitimate organic agriculture at the hands of
fraudulent and deceptive trade practices. Until high quality organic food production and
processing standards are in place and given credence by federal and state agricultural
agencies and educational institutions, chemical-based agriculture will predominate across
the midwest—an area that is largely dependent on agriculture and which, in turn sends
much of its contaminated water to the Great Lakes basin. As fragile as an ecosystem, this
remarkable labyrinth of freshwaters seas cannot be expected to serve as a forgiving toxins
reservoir forever.
12. See, e.g., Food Agriculture, Conservation
and Trade Act of 1990, Pub. L. No. 101-624, 104 Stat. 3359 (codified at 7 U.S.C. § 1421
(Supp. V 1993). See S. REP.NO. 357, 101st Cong., 2d Sess. 289 (1990), reprinted
in 1990 U.S.C.C.A.N. 4656, 4943-44 (describing the conflicts arising from differences
in organic standards).
For examples of state certification programs operated
directly by the state government, see COLO.REV. STAT. § 35-11.5-1102 (Supp. 1991); TEX.
AGRIC. CODE ANN. § 12.0175 (West Supp. 1992); WASH. REV. CODE § 15.86.010 (Supp. 1992).
Four states have statutes providing that the state government works with certification
entities. MINN. STAT. ANN. § 31.95 (West 1990); N.H. REV. STAT. ANN. § 426:6-b (1991);
OHIO REV. CODE ANN.§ 901:3-8 (Baldwin 1990); VT. STAT. ANN. tit.b § 181 (1991). Other
states have organic labeling statutes and regulation that generally do not require
mandatory certification. See, e.g., CAL. HEALTH & SAFETY CODE § 26469.20 (West
1990); CONN. GEN. STAT. § 21a-80 (1990); OKLA. STAT. ANN. tit. 2, § 5-301 (West 1989);
WIS. STAT. § 97.09 (1988). See also Gordon G. Bones, State and Federal Organic
Food Certification Laws: Coming of Age?, 68 N.D. L. REV. 405 (1992) (comparing the
Texas and California certification schemes); Comment, State Mandate Pesticide
Application and the Due Process Rights of Organic Farmers, 17 PAC. L.J. 1301, 1304-07
(1986).
13. See S. REP. NO. 357, 101st
Cong., 2d Sess. 289, 290, 302-03 (1990), reprinted in 1990 US.C.C.A.N. 4656, 4944,
4956-4957. See generally Martin H. Redish, Product Health Claims and the First
Amendment: Scientific Expression and the Twilight Zone of Commercial Speech, 43 VAND.
L. REV. 1433 (1990) (discussing commercial speech as it relates to product health claims).
Commercial speech such as organic livestock farmer advertising does receive some First
Amendment protection from state and federal restrictions. Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm’n, 447 U.S. 557, 566 (1980) (modified by Board of Trustees
v. Fox, 492 U.S. 469, 480 (1989)). This protection, however, is less than that afford
political or social expression. See id. At 561-62. See also David F.
McGowan, A Critical Analysis of Commercial Speech, 78 CAL. L. REV. 359, 361-81
(1990).
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