On June 6, consumer interest advocacy groups and various organic farmers, including the Center for Food Safety (CFS) and Swanton Berry Farms, Inc., filed an appellants’ reply brief against the USDA’s request that the Ninth Circuit uphold a California federal judge’s finding that it may continue to allow hydroponic growers to label their goods as “organic.”

As background, in 2019, CFS submitted a petition to USDA for a proposed rulemaking that would exclude hydroponic produce from “organic” certification because the products are not grown in soil. USDA denied the petition. As a result, the group of consumer interest advocates and organic farmers sued the USDA in district court, claiming organic certification of hydroponic operations that do not work with soil is prohibited under the Organic Foods Production Act (OFPA). The district court rejected the plaintiffs’ challenge, and CFS appealed the decision to the Ninth Circuit. Summaries of the suit can be found here, here, and here.

In the 40-page reply brief, CFS argues that the USDA took an “unreasonable interpretation” of the OFPA and disregarded requirements that all organic crop production foster soil fertility. CFS further alleges that accepting the USDA’s interpretation of the OFPA undermines Congress’ intent and that finding in favor of the USDA would set precedent and allow the Agency to “chip away and/or eliminate OFPA’s other prohibitions and restrictions on organic crop production.”

A hearing on the appeal is scheduled to be held before a three-judge panel in San Francisco on July 27.