USDA has published the long-awaited Organic Livestock and Poultry Standards (OLPS) rule. We need you — leaders of independent retailers and co-ops — to get it to the finish line!
How can co-ops and retailers participate? The most important way co-ops and retailers can help is by writing individual comments to the Federal Registrar. Powerful support from consumers, producers, and businesses is needed to get this rulemaking across the finish line. The stakes are high that significant disagreements among stakeholders will be used as an excuse to remove this rulemaking permanently. The USDA has signaled that they want to hear from retailers (meaning they will likely weigh these comments highly during the review period).
Where can I read and comment on the proposed Organic Livestock & Poultry Standards Rule? Visit the Federal Register. This is also where you can submit comments electronically (see the link on the top right corner of the Federal Register page). Comments must be received by November 10, 2022. While you can mail comments, we highly recommend you submit comments electronically, as that is the USDA’s preference and your comments are more likely to be counted and received on-time.
I don’t have a lot of time. What do I need to know to make an effective comment? Read Cornucopia’s talking points at the bottom of this page. The USDA also has a how-to guide for submitting effective comments.
What hot-button issues need to be addressed in the OLPS rulemaking?
Instead of dustbathing and cavorting in the sunlight, industrial organic hens are crammed into massive barns with screened porches. A few big industry players would like to keep these porches and stop this animal welfare update from crossing the finish line. Countering this powerful opposition and moving this rulemaking forward will require collaboration from the organic community on the following issues:
- Calling for a short implementation timeframe, rejecting the option for a 15-year phase-out of porches. Cornucopia and other stakeholders are asking for a phase-out of three years.
- Communicating to the USDA that serious organic market failure and consumer confusion exist in regards to organic animal welfare practices.
- Confirming that the Organic Foods Production Act of 1990 (OFPA) authorizes these regulations on animal welfare and livestock production practices.
(The rulemaking isn’t perfect by any means and there are areas that could be improved before the rule is finalized. However, the effect of no rulemaking would have severe consequences for the organic label. It’s acceptable to show strong support for moving the rule forward while still suggesting improvements! )
Why is the OLPS rulemaking important? A 2017 survey by Consumers Union survey found that 9 out of 10 respondents who regularly buy organic foods believe that it is very or extremely important that “organic animals come from farms with high standards for welfare practices.”
Without the OLPP or other clarifying legislation, organic poultry and egg production will be left with the current rules and regulations. This means the industry continues to operate without set spacing requirements or clear definitions for “outdoor access.”
Until something changes — whether it is the law, NOP enforcement, or consumer demand — industrialization will thrive while community-scale farmers struggle.
What key updates to the organic rules are offered by OLPS?
The heft of the rulemaking concerns improvements for organic poultry. Currently, avian species have fewer regulatory controls than ruminant animals (such as beef and dairy). Because the provisions applicable to poultry are general and vague, significant variations in organic production practices have flourished. Some of these practices prohibit or discourage poultry from engaging in natural behaviors.
Chickens are some of the least protected livestock animals in our food systems, despite the fact that chickens easily outnumber other livestock. Chickens are intelligent, social, and curious animals that can feel pain, fear, and stress. Both the law and the predominant food production model fail to account for these traits.
The key changes found in the draft rulemaking include:
- Updated definitions and requirements for outdoors access for all livestock species
- Explicitly outlawing the use of enclosed porches (e.g., screened-in and roofed) as the only outdoor space (one of the most significant abuses in organic poultry).
- New outdoor and indoor spacing requirements for poultry, including stocking density requirements for chickens.
- Updated living condition requirements for all mammalian species. This includes new, specific requirements for organic swine (which have few requirements under the current rules), potentially impacting a stagnant organic pork market.
- Updated requirements for preventative healthcare for all organic livestock, requiring improved monitoring for animal welfare.
- Prohibiting alterations like de-beaking and toe clipping birds and tail docking cattle.
More specific requirements for euthanasia, slaughter, and transporting organic livestock.
Altogether this animal welfare improvement moves the regulations closer to consumer expectations surrounding organic livestock.
What is the history of the OLPS rulemaking?
The OLPS rulemaking is the second official attempt to improve animal welfare for organic livestock.
The first attempt was the Organic Livestock and Poultry Practices (OLPP) rule, which was first proposed in April 2016. Many stakeholders touted the OLPP as an “animal welfare update” to the livestock regulations. This was particularly true for poultry, which does not get the same attention in the law as ruminant livestock, such as beef or dairy cattle. The proposal would have set maximum indoor and outdoor stocking densities to ensure birds have sufficient space to engage in natural behaviors.
The USDA framed the purpose of OLPP as follows: “To improve upon the current standards, this proposed rule would set separate standards for mammalian and avian livestock living conditions to better reflect the needs and behaviors of the different species, as well as related consumer expectations.”
The 2016 draft of the OLPP came after many years of policymaking and NOSB recommendations pushing for changes that would update the organic livestock provisions. Some NOSB actions clearly contributed to the OLPP – and probably the OLPS – proposal. In May 2002, the NOSB recommended changes to how “outdoor access” was defined, stating it should include open air and direct access to sunshine for all poultry.
In December 2011, the NOSB passed an additional animal welfare recommendation that included specific indoor and outdoor space requirements (in the form of stocking densities), among other provisions for living conditions specific to poultry. When these recommendations and others were challenged by industry, the USDA determined the need for a rulemaking to clarify the issues once and for all.
The final rule was poised for completion in January 2017, but the US presidential transition, along with an executive order by the incoming President Donald Trump calling for a “Regulatory Freeze Pending Review,” resulted in a delay to the OLPP’s enactment. The OLPP went up for comment multiple times in 2017. Each time, the majority of comments were not only generally in favor of the regulation, but requested that it be enacted quickly.
On March 12, 2018, the USDA finally announced that it would withdraw the OLPP entirely. In its review of the public comments, the USDA noted approximately 72,000 comments on the proposal to withdraw the OLPP final rule. Over 63,000 of these comments opposed the withdrawal of that final rule. Only 50 comments supported withdrawal of the OLPP.
Despite over 40,000 comments in favor of implementing the OLPP, the USDA viewed the current growth in the organic egg market as evidence of “consumer confidence” in the label. What this rapid growth truly indicates is the increasingly outsized retail-sales influence of industrial-organic egg producers (the same producers using the screened-in porches) . Most consumers who buy organic eggs are unaware of the deception. Successes from a lawsuit led by Center For Food Safety led the USDA to admit that it made a mistake when withdrawing OLPP and would redo the rule quickly. The new rule was re-named: the Organic Livestock and Poultry Standards (OLPS).
Why can’t the USDA just enforce the “current rules” to get rid of chicken porches?
Long story short: Existing administrative case law dictates the allowance of porches under organic production. The straightforward solution to “bad” case law is not to try and enforce the same regulation again in the same way – the likelihood of it being challenged and thrown out in administrative courts is high (making it a waste of USDA time, money, and staff hours).
The basis of this administrative decision occurred very early on in the organic standards. On July 15, 2002, an operation called The Country Hen applied for organic certification of its egg laying operation. As part of the application, The Country Hen’s Organic System Plan showed that the “outdoor access” required by the organic regulations would be provided through covered and screened-in porches. These porches offered no open sky or access to the ground for their birds. The certifying agent rightly denied certification for failure to provide hens with access to the outdoors, and stated that a “porch” could not provide outdoor access as required by the USDA organic regulations.
The Country Hen then appealed the Denial of Certification — as was their right according to organic law — to the Agricultural Marketing Service (AMS) Administrator. Unfortunately, the AMS judge decided that poultry porches could be allowed because the regulations do not specify outdoor space requirements for organic poultry (only that they must have “access to the outdoors”). The appeal was sustained and the certifying agent was directed to grant retroactive organic certification to the operation. The Country Hen sold their eggs with the organic seal during this whole period of conflict.
Since that time the use of porches, and the acceptance of industrialized “organic” egg production, has spread throughout the country. Both the Country Hen case and the lack of responsive rulemaking action has legitimized industrial organic practices. Organic integrity has suffered since.
Suggested Talking Points
Illustrate how your business is impacted by a lack of consistent standards. Add commentary about your customers, the types of products you seek out and stock on your shelves, and your producer relationships. Customize the following suggested talking points (and reach out to Cornucopia if you need assistance):
- Discuss how your customers are invested in organic integrity. The stated purpose of the Organic Foods Production Act is to establish national standards to govern the marketing of organic products, to assure consumers that organic products meet a consistent standard, and to facilitate commerce in organic food. The standards — and therefore the marketplace — allow massive factory farms to use the same label as high integrity organic producers. Asserting a need for minimum quantifiable standards for all livestock species’ natural behaviors will support this foundational rulemaking.
- Highlight the importance of animal welfare for your customers and the demand for organic eggs, poultry, and pork products that reflects this value. Be specific about your customers’ top priorities. Is it space allotted? The quality of outdoor access? Restrictions on slaughter or euthanasia?
- Underscore the unique place the organic label holds in the marketplace. Other third-party labels for egg and poultry confuse and fail to serve customers. They do not track the entire production chain, potentially exposing consumers to antibiotics, pesticides, and other agricultural chemicals even if the products are otherwise high welfare.
- Critique the implementation timeframe. One of the suggested implementation timeframes to phase out egg porches is 15 years, which is far too long. Cornucopia and other stakeholders are asking for a phase-out of three years.
- Address the economic pain. What is the economic risk of market failure if consumers become more widely aware of the widely differing practices sharing the same label?
