Regulating Organic Food: The Case for the National Organic Standards Board

Abstract

The organic food industry involves a mix of diverse interest groups, including agrarian purists, “big organic” industry, environmentalists, and consumer interest groups. This paper addresses how the different institutions charged with overseeing organic food to one extent or another – the USDA, the National Organic Standards Board, and the courts – should interact to produce the best regulations for organic food. The paper advances four arguments. First, courts lack competency in the area of organic food. Second, the USDA is not always transparent in its oversight and may in fact favor big organic businesses over other interests. Third, the NOSB has the expertise that the courts lack and the transparent deliberation that makes its decisions less vulnerable to charges of unfairness or favoritism. Fourth, courts should typically defer to the USDA on organic food decisions. But courts should help ensure that the USDA follows NOSB proposals by engaging in more searching review of agency rules and regulations that are misaligned with the advisory board’s recommendations.