Ninth Circuit Finds Hydroponically Grown Crops Can Be "Organic" as Advocated by ArentFox Schiff

But can hydroponic produce be labeled as “organic” when sold to consumers? In a decision on September 22, 2022, the US Court of Appeals for the Ninth Circuit said yes, thus confirming the longtime practice of the US Department of Agriculture (USDA) and providing a decisive victory to hydroponic farmers.

The Lawsuit and Appeal

In 2019, an NGO representing largely organic soil-based farmers petitioned USDA to ban hydronic produce from being labeled as “organic.” USDA declined to do so.

CFS then sued USDA in the US District Court for the Northern District of California, arguing that the agency was required to issue such a ban under the Organic Foods Production Act of 1990 (OFPA). In its view, the OFPA exclusively permits produce to be labeled as organic if it is grown using organic methods, including soil-based production.

Judge Richard Seeborg of the District Court disagreed. In his decision on March 19, 2021, Judge Seeborg held that the OFPA did not directly address a requirement for soil-based production, and accordingly, the “USDA’s ongoing certification of hydroponic systems that comply with all applicable regulations is firmly planted in OFPA.” He further determined that an administrative agency like USDA is entitled to a high degree of deference on how it administers its industry-specific rules, such as the certification process for organic produce.

Plaintiffs, not satisfied with the outcome in the District Court, appealed to the Ninth Circuit. But the Ninth Circuit affirmed the District Court in a succinct ruling, holding that “no part of the [OFPA] clearly precludes organic certification of crops grown hydroponically.” It noted that the OFPA includes three basic requirements for “organic” crops: a restriction on synthetic chemicals, a prohibition on growing crops on land treated with synthetic chemicals, and a requirement that organic products “be produced and handled in compliance with an organic plan.” The Court observed that “[i]f the OFPA’s text clearly barred hydroponic production, we would be required to enforce it according to its terms and set aside USDA’s interpretation. But no part of the statute clearly precludes organic certification of crops grown hydroponically.” More broadly, the Ninth Circuit found that the USDA appropriately explained its reasoning and exercised “scientific judgments and technical analyses within [its] expertise,” meaning that a court’s review must be “most deferential.”

ArentFox Schiff represented the Coalition for Sustainable Organics, along with several other prominent hydroponic growers and agricultural trade groups, in submitting amicus briefs, both to the District Court and to the Ninth Circuit (available here). Both courts adopted the legal frameworks advocated by our briefs, as did the Department of Justice in its representation of the USDA.

Takeaway

The Ninth Circuit’s decision confirms what has already been the longstanding practice of the USDA: hydroponic farmers may continue to label their produce as “organic.” This outcome will strengthen agricultural innovation as growers across the country continue to leverage new technologies to produce safe, healthy, and affordable foods.

ArentFox Schiff’s AgTech group will continue to monitor this and other issues of interest to the industry. If you have questions, please feel to reach out to Karen Carr, Brian Farkas, and Mattie Bowden, who were counsel of record for the hydroponic growers in the case, or the ArentFox Schiff attorney who handles your matters.