Sea Grant Law Fellow research uncovers complex issues, risks for would-be organic seafood growers
If you prefer to buy organic food whenever possible, you may wonder why you don’t see “organic” farmed seafood in grocery stores or fish markets—and if you do, you may wonder exactly what that means.
The popularity of organic foods continues to grow, but the U.S. Department of Agriculture, which certifies all kinds of agricultural products from produce to dairy to meat as organic, has no process for certifying aquacultured seafood as organic, and has, it appears, no plans do so. (And wild seafood, since its feeding is not controlled, is also not considered “organic.”)
This frustrates growers who fear they are losing out on sales to buyers who only want organic products. The Manna Ocean Foundation of Long Island approached the Rhode Island Sea Grant Legal Program’s senior staff attorney, Read Porter, to see if there was a legal way for U.S. seafood growers to market their products as organic, even if they can’t use the “USDA Organic” seal.
Porter and Rhode Island Sea Grant Law Fellow Kathryn Kulaga set out to answer that question. Kulaga found that in the U.S., “agricultural products may be sold or labeled as ‘organically produced’ only if they are ‘produced and handled in accordance with’” the Organic Foods Production Act (OFPA), and “labels cannot ‘impl[y], directly or indirectly, that such product is produced and handled using organic methods, except in accordance with’” the OFPA, which the USDA enforces. However, the USDA also indicates that because there is no process for the certification of seafood, the agency will not take enforcement action against anyone who labels their farm-raised seafood as organic. This, according to the report Porter and Kulaga produced, has led to seafood being labeled as organic and marketed in the U.S. in stores such as Wegman’s, most often thanks to European Union or Canadian certifications.
Lawsuits over other claims that certain products are organic have been litigated with implications for seafood, something Kulaga delved into when she found scant case law on organic food labeling. Producers who label their seafood as “organic” on the theory that the USDA will not act against them still may face the risk that other producers or consumers could take issue with the “organic” claim and sue. While no clear legal precedents have been set regarding these types of claims (think unfair competition and false advertising), they do present a potential threat for would-be organic seafood growers. But the challenges don’t end there. With the USDA not acting on organic labeling for seafood, certain stores, such as Whole Foods, refuse to carry seafood labeled as organic, and the state of California forbids their sale.
Taking all that into consideration, the path forward for U.S. growers who may be considering a Canadian or other certification is a fraught one, at least until (if?) the USDA moves a certification process forward. For now, say the report authors, growers and markets should weigh their options carefully and consider their risks.
While the report may help seafood growers understand the legal issues around organic labeling, it provided a benefit to Kulaga as well. Though she had previously worked for the federal government in military and civilian capacities for 16 years, the fellowship was her first experiential learning experience in the law school. And, she said of the project, “it certainly was a test of my writing ability and conducting analysis in a field in which I was unfamiliar … [I] thought it was a good experience in terms of research and writing for a real-world problem.”
Having that government experience gave her a unique perspective on the work she did as a law fellow: “I was not surprised to see the process take as long as it has. The organic seafood labeling proposal has been on the inactive regulatory agenda for several years now; I don’t know if [it] ever will get moved onto the active agenda, but there certainly is a lot of interest.”
You can see the full report online at: https://eos.ucs.uri.edu/EOSWebOPAC/OPAC/Common/Pages/GetDoc.aspx?ClientID=EOSMAIN&MediaCode=22443237