Organic Food Standards May Violate First Amendment

WASHINGTON, DC December 20, 2000—New standards for organic foods may violate First Amendment free speech rights, the Competitive Enterprise Institute said today. “USDA’s organic rule attempts to create a single, nationwide standard for a concept that means different things to different people,” said CEI director of food safety policy Gregory Conko. “These rules raise serious First Amendment problems. Not only do they prohibit producers from using standards that are less strict than USDA’s; they also prohibit standards that are more strict.”

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USDA interpreted the Organic Foods Production Act as requiring a single national standard for organic production. “But there is considerable evidence that consumers of organic products would benefit by being able to choose from an array of standards, and that the market is capable of providing such choices,” said Competitive Enterprise Institute General Counsel Sam Kazman. “By setting a single, unyielding standard, USDA’s decision appears to violate Supreme Court rulings that oblige the government to utilize the least restrictive approach possible in regulating commercial speech.”

In comments filed this past June, CEI urged USDA to avoid imposing a single across-the-board standard for organic foods. Such a standard would deny consumers the flexibility to choose between various organic production methods, and its restrictions on labeling by competing certifiers may be unconstitutional. In its new rule, to be published tomorrow in the Federal Register, the USDA acknowledges that a request to change this provision was received. Nevertheless, USDA declined to change the provision, but gave no reason for that judgment.

USDA received more than 275,000 individual comments on its proposed rule – most of them critical – making it one of the most controversial proposals in recent memory. “In our view, there was simply no way for USDA to resolve these disputes in any rational manner because there is no right answer,” said Conko. “By prohibiting any variability or flexibility, the national organic standard will prevent producers from responding to consumer preferences and will directly harm, not enhance, consumer choice.”

CEI is a non-profit, non-partisan public policy group dedicated to the principles of free enterprise and limited government. For more information, contact Richard Morrison, director of public relations, at 202-331-1010.