In an effort to distinguish their products from those of competitors, some segments of the livestock and meat industries make labeling claims referring to special attributes of their product or process.2 A disparity exists, however, between consumer demand for livestock products based on production attributes and consumer understanding of precisely what production practices lay behind specific retail labels. Although the USDA regulates use of several production-based claims such as grass-fed, organic, and pasture-raised, industry-led efforts to create ever more differentiated (and often more stringent) product labels to satisfy consumer expectations remains a growing niche aspect of the food industry. In its simplest form, tension exists between the minimum standards developed for government-backed food labels and industry demands to further differentiate their products via specialized labeling to meet increasingly specific consumer expectations. This article reviews recent developments with respect to three government-controlled livestock labeling claims.
II. Grass-fed Livestock Claims
In 2002, the USDA’s Agricultural Marketing Service proposed standards for several livestock and meat marketing claims designed to facilitate communications between producer and consumer to better inform purchasing decisions.3 One proposed standard that engendered particular public comment was for animals raised on grass, green or range pasture, or forage throughout their lifecycle, with only limited supplemental grain feeding—so called “grass-fed” claims.4 The 2002 proposal required grass (or grass equivalents such as green or range pasture or forage) to comprise at least 80 percent of the animal’s primary energy source throughout its lifecycle.5 In response to significant comments directed at the 2002 proposal, the USDA in 2006 revised its proposed “grass-fed” labeling claim, requiring grass and/or forage to constitute 99 percent of the total energy source for the lifetime of the animal.6
The USDA, however, declined to limit grass and forage consumption to only non-harvested grasses or to restrict the use of stockpiled or stored forage.7 Supporters of this ban on stored forage argued that consumers would expect “grass-fed” livestock to be “free range” and not fed in confinement.8 USDA acknowledged the “synergistic nature to grass feeding and free range conditions,”9 but due to the diverse grass-feeding regimes across the nation, the agency found the limitation impractical and unduly restrictive.10 Rather, to satisfy consumer demand for both grass-fed and free range products (and other attributes such as no added hormones), the agency encouraged producers to distinguish their goods further via separate, voluntary labeling claims beyond “grass-fed.”11
Accordingly, in 2007, the USDA adopted final rule requiring a 100 percent grass or forage-based diet standard for use of the “grass-fed” claim.12 The change from 99 to 100 percent primarily resulted from criticism that calculating and verifying the 99 percent standard was unnecessarily difficult, especially considering that there is little difference between the two amounts.13 Further, the agency decided to remove the “energy source” language in the standard in order to clarify that supplemental sources of energy and protein are not permitted under the grass-fed claim.14 The USDA also declined to limit the grass-fed designation to animals exclusively fed live grass because of the wide range of climates across the United States and allowed certain stockpiles of stored and harvested forages within the grass-fed standard.15 Although USDA’s final standard allows livestock intake of vitamin supplements and selected minerals in order to adjust for possible diet deficiencies, it prohibits some supplements, including cereal grains, grain byproducts, cottonseed meal, and soybeans.16The USDA abstained from incorporating hormone and antibiotic bans in the grass-fed standards, noting that such a distinction would be more appropriate as a separate marketing claim.17 Further, the final standard requires “continuous access to pasture during the growing season.”18
Although the USDA’s final decision adopted a seemingly stringent 100 percent dietary standard, the rule fell far short according to the American Grassfed Association (AGA), a trade association representing many raisers of grass-fed livestock.19 The AGA advocates year-round pasture along with a prohibition of growth hormones and antibiotics, arguing that failure to incorporate those requirements into the USDA’s rule will create consumer confusion rather than enhance accurate communication.20 The AGA also criticized the USDA’s voluntary verification process, under which other producers can use a grass-fed-type claim without following the USDA standards. Accordingly, the AGA announced it own industry-backed standard for certifying grass-fed meat operations, which prohibits confinement, antibiotics, and added hormones.21
III. Organic Livestock Claims
Tension between minimum government standards and industry desire to make more specialized claims is also prevalent in the organic meat industry. Prior to the passage of the Organic Food Production Act (OFPA) in 1990, USDA, under the authority of the Meat Inspection Act and the Poultry Products Inspection Act, explicitly prohibited the use of the term “organic” in association with meat or poultry products. Rather than specify organic standards for livestock in the OFPA, Congress delegated the development of organic standards to the National Organic Standards Board (NOSB), for eventual incorporation into the National Organic Program regulations.
Most of the controversy to date centers on the amount of pasture (as opposed to feedlot confinement) required for organically raised livestock. In 2005, the NOSB recommended requiring ruminants to graze on pasture during the growing season.22 Rather than finalize proposed rules for public comment, USDA instead decided to engage in additional “fact finding” on the NOSB proposal.23 While USDA debated the respective merits of proposed pasture requirements, demand for organic dairy products skyrocketed.24 In response, several large-scale dairy operations sought and received organic certification. Scale efficiencies led these producers to adopt feedlot production systems rather than the “pasture-based” systems envisioned by many in the organic community. Despite the initial certification of large-scale dairies, the USDA has issued “Notices of Proposed Revocation” to some organic dairy operations, alleging they are violating the terms of the National Organic Program, including failure to establish and maintain access to pasture, transferring dairy cattle between organic and non-organic production methods, and failure to maintain and disclose adequate records of the production operations.25 The USDA’s recent enforcement actions indicate that it may be moving, albeit slowly, toward a feedlot-free organic standard.
Despite the rapid growth of the organic dairy industry in recent years, the industry is currently in decline as a result of the current economic recession.26 Due to debt from expenses/lost revenue during the conversion to organic, the increase in organic feed prices and decreased consumer demand, many organic dairies are closing.27 Some small organic dairy farmers have implored USDA Secretary Tom Vilsak to shut down the large-scale “factory” organic dairies in order to decrease the surplus of organic milk on the market.28 Comments from Secretary Vilsack at a July county fair in Wisconsin pledging a commitment to enforcing organic standards so that small farms can keep operating further indicates that leadership at USDA may be taking a much harder look at the organic certification of large scale organic dairy production.29
IV. Pasture-Raised Livestock Claims
Even outside the realm of “organic” certification, much of the tension between minimum government standards for labeling and industry desire for more specialized claims centers on livestock access to pasture. In 2002, the USDA requested comments on standards for certified labeling claims relating to livestock production, including a standard for pasture-raised livestock.30 A claim that livestock is “pasture-raised’ means animals have had “continuous and unconfined access to pasture throughout their life cycle.”31 For red meat product labels, the agency further required that a claim of “pasture-raised” or “free-range” be qualified with the statement “never confined to a feedlot.”32 Although the USDA has yet to promulgate a final rule governing pasture-raised livestock claims, the agency currently certifies such claims on a case-by-case basis.
Although the USDA’s standard excludes animals raised on feedlots from the definition of pasture-raised, some organizations, such as the Animal Welfare Institute (AWI), believe the USDA’s proposed standard is not stringent enough. AWI advocates for a pasture-raised definition that imposes limitations on the type of pastureland animals may graze on, as well as limits on the amount of animals grazing on a particular pasture.33 Because the pasture-raised definition does not impose any limitations on antibiotics or hormones, some consumers may be misled into thinking that a “pasture-raised” product includes those attributes.
V. Conclusion
The tension between industry desire to meet consumer demand for specialized products and government minimum standards permeates all types of process attribute claims for livestock products. As consumer demand for livestock products based on production attributes grows, the greater the need for USDA to set clear standards that allow livestock producers to differentiate their products in line with consumer expectations. This area of law will likely see regulatory development in the future as new product attributes come to market and consumer expectations evolve. ■
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22. NOSB, Formal Recommendation to the National Organic Program, March 18, 2005, available at <http://www.ams.usda.gov/nosb/FinalRecommendations/Feb05/PastureRec.pdf
>.
24. See Carolyn Dimitri & Kathryn M. Venezia, Retail and Consumer Aspects of the Organic Milk Market, USDA, Economic Research Service, May 2007, available at <http://www.ers.usda.gov/publications/LDP/2007/05May/LDPM15501/ldpm15501.pdf> (noting that demand for organic milk increased 25 percent in 2005); Kim Severson, An Organic Cash Cow, N.Y. Times, Nov. 9, 2005, at FI (noting that although organic milk comprises only three percent of total milk sales, the annual growth rate for or organic milk was 23 percent, while overall milk consumption fell by eight percent).