(UPDATED COVERAGE, March 12) It took several years, but California finally has regulations to address the licensing and verification of organic fertilizers.
Known as AB856, the legislation came out of the California Department of Food and Agriculture and was signed into law in 2010, but didn’t go into full effect until January, said Rick Jensen, director for CDFA’s division of inspection services.
“Our legislators determined the NOP (National Organic Program) wasn’t enough,” Jensen said “They have given us the authority to regulate organic inputs, regardless where they are manufactured.”
The department’s authority — or lack thereof — related to organic fertilizers hit the headlines in late 2008 because California Liquid Fertilizer’s Biolizer XN was found to include non-organic substances.
Company owner Peter Townsley pleaded guilty Feb. 22 to two federal counts of mail fraud, admitting he sent the Organic Materials Review Institute fraudulent information in certification renewals. According to his plea agreement, Townsley sold Biolizer XN from 2000 through 2006 as organically certified even though it contained ammonium chloride and ammonium sulfate. Although those compounds are approved for use on conventional crops, they are banned from organic use.
Jensen said he grossed as much as $6.9 million on the sales. Officials said he had about 60% of California’s liquid organic fertilizer market. He faces up to 40 years in prison and fines of more than $250,000. Sentencing is set for June 13.
Jensen said even though the California agriculture department had information as early as 2004 about the violations, the department did not and still does not have subpoena authority — leading to difficulty in obtaining product samples. During its original investigation, he said CDFA used “a variety of techniques” to verify Biolizer XN ingredients.
In 2007 CDFA banned the product and later came under fire for not acting earlier.
Now, under AB856, manufacturers must apply for licenses and provide documentation of the ingredients of fertilizer they claim is OK for use in organic operations. The licenses, renewable every two years, carry a $500 fee plus an extra tax. Jensen said that could raise at least $250,000 annually.
CDFA has added “two or three investigators and another two or three registration specialists,” Jensen said. Violators face fines up to $15,000 per violation and license suspension of three years.
Organic or not?
As for the hundreds of organic growers who used Biolizer XN, including growers for Tanimura & Antle Inc. and Driscoll Strawberry Associates, they were considered victims and not penalized for using the non-compliant fertilizer.
Whether regulators pulled the organic status of the land where tainted fertilizer was used — which would require a 3-year transition before organic certification could resume — wasn’t known. Calls to the NOP and the California Certified Organic Farmers regarding the land’s status were not returned.
However, NOP regulations on continued certification of organic land state applicants must indicate any “deviations from … the previous year’s organic system” when they request annual recertification.
Gwendolyn Wyard, associate director of organic standards for the Organic Trade Association, said she was pleased the Biolizer XN case was finally coming to justice, but she did not endorse the idea of mandatory testing of organic inputs such as fertilizers, or organic foods.
“We have not focused on testing because the organic regulations are process based standard. We don’t say what (organics) contain, we are saying how they were made,” Wyard said March 7.
“In some cases testing is appropriate because certifier operators must prevent contamination of organic products, and certifiers do in fact currently test for prohibited substances such as pesticide residues. But overall it hasn’t been a problem so far.”
Wyard said both OTA and the National Organic Standards Board, which advises the NOP, have recommended that NOP implement an accreditation process for material reviews, though. She said federal oversight is needed to ensure uniform review practices.
In a prepared statement Wyard issued March 10, she said OTA does support mandatory testing as detailed in the Organic Foods Production Act, which requires certifiers to conduct periodic residue testing to determine whether certified products contain any pesticide or other prohibited substances.
NOP regulations require certifiers to report positive results of residue testing in response to monitoring and/or investigating compliance to the regulations, Wyard's statement said.
There will also be a final rule released this year further clarifying the requirements for certifiers to conduct residue testing on a percentage of their certified operations.
OTA not only supports residue testing as required by OFPA and the NOP regulations, but has called for testing in order to verify the contamination prevention practices required under the NOP regulations, Wyard said in her March 10 statement.