Is usda organic a seal of deceit?: The pitfalls of usda certified organics produced in the United States China And Beyond

Stanford Journal of International Law

Volumn 47, Issue 2, 2011, Pages 333-378

  Liu, Chenglin ^a  

^a ST MARY'S UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 80052782511     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (247)

1. Organic Foods Production Act of 1990, Pub. L. No. 101-624, 104 Stat. 3935 (codified as amended at 7 U.S.C. §§ 6501-6523 (2006)).
2. CATHERINE GREENE ET AL., U.S. DEP'T OF AGRIC. ECON. RESEARCH SERV., ECONOMIC INFORMATION BULLETIN No. 55, EMERGING ISSUES IN THE U.S. ORGANIC INDUSTRY 3 (2009), available at http://www.ers.usda.gov/publications/eib55/ eib55.pdf.
3. Bryan Endres, An Awkward Adolescence in the Organics Industry: Coming to Terms with Big Organics and Other Legal Challenges for the Industry's Next Ten Years, 12 DRAKE J. AGRIC. L. 17, 35 (2007).
4. GREENE ET AL., supra note 2, at 8.
5. WJLA/NewsChannel 8, ABC 71-Team Investigates: Organic Foods, ABC 7 NEWS (WJLA-TV), May 21,2008, http://www.wjla.com/news/stories/0508/521743.html.
6. CORNUCOPIA INSTITUTE, BEHIND THE BEAN: THE HEROES AND CHARLATANS OF THE NATURAL AND ORGANIC SOY FOODS INDUSTRY 17 (2009), available at http://www.cornucopia.org/soysurvey/OrganicSoyReport/behindthebean-color-final. pdf.
7. Organic Foods Production Act of 1990, Pub. L. No. 101-624, 104 Stat. 3935 (codified as amended at 7 U.S.C. §§ 6501-6523 (2006)).
8. National Organic Program, 7 C.F.R. §§ 205.1-205.669 (2011).
9. 7 U.S.C. § 6506
10. 7 C.F.R. § 205.500(a): "The Administrator shall accredit a qualified domestic or foreign applicant in the areas of crops, livestock, wild crops, or handling or any combination thereof to certify a domestic or foreign production or handling operation as a certified operation."
11. GREENE ET AL., supra note 2, at iii.
12. See PHILIP CONFORD, THE ORIGINS OF THE ORGANIC MOVEMENT 100 (2001)
13. SAMUEL FROMARTZ, ORGANIC, INC.: NATURAL FOODS AND HOW THEY GREW 20 (2006)
14. Michelle T. Friedland, You Call That Organic?-The USDA's Misleading Food Regulations, 13 N.Y.U. ENVTL. L.J. 379, 381 (2005)
15. Kyle W., Lathrop, Pre-empting Apples with Oranges: Federal Regulation of Organic Food Labeling. J. CORP. L. 16. 885, 886 (1991).
16. FROMARTZ, supra note 15, at 20. Id For a brief biography of Mr. Rodale, see J. I. Rodale and the Rodale Family Celebrating 50 Years as Advocates for Sustainable Agriculture, available at http://wmv.portalstate.pa.us/portal/ server.pt?open=5I4&objID=588386&mode=2 (last visited April 22,2011).
17. see also Friedland, supra note 15, at 381.
18. FROMARTZ, supra note 15, at 19.
19. Lathrop, supra note 15, at 886.
20. Friedland, supra note 15, at 381-82.
21. Id. at 382.
22. S. REP. NO. 101-357, at 292 (1990), reprinted in 1990 U.S.C.C.A.N. 4943,4943.
23. Id. at 4944.
24. Organic Foods Production Act of 1990, Pub. L. No. 101-624, 104 Stat. 3935 (codified as amended at 7 U.S.C. §§ 6501-6523 (2006)).
25. Id. § 6501.
26. See Friedland, supra note 15, at 388.
27. S. REP. NO. 101-357, at 292 (1990), reprinted in 1990 U.S.C.C.A.N. 4943,4946.
28. 7 U.S.C. § 6502(14).
29. Id. § 6504(2).
30. Id. § 6504(3).
31. Id. §§ 6504(2), 6517
32. see also The National List of Allowed and Prohibited Substances, 7 C.F.R. 205.600(2011).
33. William J. Friedman, The Framework For Global Organic Food Trade Circa 2005: Accomplishments and Challenges, 60 FOOD & DRUG L.J. 361, 366 (2005).
34. 7 U.S.C. § 6517 (2006)
35. see also 1 C.F.R. § 205.600 (2010).
36. 7 U.S.C. § 6517(c)(1)(A).
37. A/.§6517(cXlXAXi),(ii).
38. Id. § 6517(b)
39. see also 7 C.F.R. § 205.600.
40. 7 U.S.C. § 6517(c)(l)(B)(ii).
41. Id. §6518.
42. A/. § 6518(b).
43. Id. § 6518(k)(2).
44. A/. § 6517(d)(4).
45. Id. § 6517(d)(5).
46. 7 C.F.R. §205.601(2011)
47. 7 U.S.C. §6521(2011).
48. OFFICE OF INSPECTOR GEN., U.S. DEP'T OF AGRIC, OVERSIGHT OF THE NATIONAL ORGANIC PROGRAM, AUDIT REPORT 01601-03-Hy 5 (2010), available at http://www.usda.gov/oig/webdocs/01601-03-HY.pdf.
49. OFFICE OF INSPECTOR GEN., U.S. DEP'T OF AGRIC, AUDIT REPORT NO. 01001-02-HY, AGRIC. MKTG. SERV.'S NATIONAL ORGANIC PROGRAM (2005), at i, available at http://www.usda.gOv/olg/webdocs/01001-02-HY.pdf.
50. OFFICE OF INSPECTOR GEN., U.S. DEP'T OF AGRIC, AUDIT REPORT 01601-03-HY, supra note 51, at 5.
51. For a detailed description of the NOP as an administrative office, see AGRIC. MKTG. SERV., U.S. DEP'T OF AGRIC, NATIONAL ORGANIC PROGRAM ORGANIZATIONAL STRUCTURE 1-2 (July 13,2010), avo;7aWea/http://www.ams.usda.gov/AMSvl.0/ getfile?dDocName=STELPRDC5086500.
52. See 7 C.F.R. § 205.1-205.699 (2011).
53. AGRIC. MKTG. SERV., U.S. DEP'T OF AGRIC, NATIONAL ORGANIC PROGRAM STRATEGIC PLAN l (Aug. 2010), available at http://www.ams.usda.gov/AMSv1.0/ getfile?dDocName=STELPRDC5086491. 37 7 U.S.C. §6514(2006).
54. Id. § 6506.
55. Id. § 6514.
56. Id. § 6506(a)(1).
57. S. REP. NO. 101-357, at 294 (1990), reprinted in 1990 U.S.C.C.A.N. 4943,4948.
58. Id. 63 OFFICE OF INSPECTOR GEN., U.S. DEP'T OF AGRIC, AUDIT REPORT 01601-03-HY, supra note 51, at 3 ("We found that NOP officials did not assemble a peer review panel to annually evaluate their accreditation procedures.").
59. National Organic Program, 7 C.F.R. § 205.501(a)(l)-(5) (2011).
60. Id. § 205.501(a)(6).
61. Id. § § 205.501(a)(9).
62. Id. § 205.501(a)(9H10).
63. 7 U.S.C. § 6505(a)(9) (2006).
64. Id. § 6506(a)(10).
65. W. § 6514(h).
66. Id. § 6514(h)(1).
67. W. § 6514(h)(2).
68. Id § 6514(h)(3).
69. See National Organic Program, 7 C.F.R. § 205.301
70. Id. § 205.301(a).
71. Id § 205.303(a)(1).
72. A/. § 205.301(b).
73. Id.§ 205.303(a)(1).
74. Id§ 205.301(c)(2).
75. Id. § 205.303(c).
76. A/. § 205.662(g)(1).
77. Id § 205.662(f)(2).
78. 7 U.S.C. § 6519 (2006); see also 7 C.F.R. § 205.662(g)(1).
79. 7 C.F.R. § 205.662(g)(2); see also 18 U.S.C. § 1001 (2006).
80. 7 C.F.R. § 205.665(dHg).
81. Id § 205.665(g)(2).
82. Kimberly Kindy, USDA's Deputy Secretary Discusses Challenges for Organic Food Market, WASH. POST, Apr. 6, 2010, at All, available at http://www. washingtonpost.com/wpdyn/content/article/2010/04/05/AR2010040504599-pf.html.
83. Harvey v. Veneman (Harvey I), 396 F.3d 28, 32 (1st Cir. 2005).
84. Id. at 33. The two provisions that Harvey challenged were 7 C.F.R. §§ 205.600(b) & 205.605(b). § 205.600 Evaluation criteria for allowed and prohibited substances, methods, and ingredients. The following criteria will be utilized in the evaluation of substances or ingredients for the organic production and handling sections of the National List: [⋯] (b) In addition to the criteria set forth in the Act, any synthetic substance used as a processing aid or adjuvant will be evaluated against the following criteria: (1) The substance cannot be produced from a natural source and there are no organic substitutes; (2) The substance's manufacture, use, and disposal do not have adverse effects on the environment and are done in a manner compatible with organic handling; (3) The nutritional quality of the food is maintained when the substance is used, and the substance, itself, or its breakdown products do not have an adverse effect on human health as defined by applicable Federal regulations; (4) The substance's primary use is not as a preservative or to recreate or improve flavors, colors, textures, or nutritive value lost during processing, except where the replacement of nutrients is required by law; (5) The substance is listed as generally recognized as safe (GRAS) by Food and Drug Administration (FDA) when used in accordance with FDA's good manufacturing practices (GMP) and contains no residues of heavy metals or other contaminants in excess of tolerances set by FDA; and (6) The substance is essential for the handling of organically produced agricultural products. § 205.605 Nonagricultural (nonorganic) substances allowed as ingredients in or on processed products labeled as "organic" or "made with organic (specified ingredients or food group(s))." The following nonagricultural substances may be used as ingredients in or on processed products labeled as "organic" or "made with organic (specified ingredients or food group(s))" only in accordance with any restrictions specified in this section.
85. Before the amendment in 1991, 7 U.S.C. § 6517 provided that: The national list may provide for the use of substances in an organic farming or handling operation that are otherwise prohibited under this title only if⋯ (B) the substance- is used in production and contains an active synthetic ingredient in the following categories⋯ is use in production and contains synthetic inert ingredients that are not classified by the Administrator of the Environmental Protection Agency as inerts of toxicological concern; or is used in handling and i[s] non-synthetic but is not organically produced.
86. tfarvey/, 396 F.3d at 40.
87. The OFPA provides: "[A] dairy animal from which milk or milk products will be sold or labeled as organically produced shall be raised and handled in accordance with this chapter for not less than the 12-month period immediately prior to the sale of such milk and milk products." 7 U.S.C. § 6509(e)(2).
88. Harvey I, 396 F.3d at 43: When the entire, distinct herd is converted to organic production, the producer may: For the first 9 months of the year, provide a minimum of 80-percent feed that is either organic or raised from land included in the organic system plan and managed in compliance with organic crop requirements; and Provide feed in compliance with § 205.237 for the final 3 months.
89. Harvey v. Johanns {Harvey II), 494 F.3d. 237, 239 (1st Cir. 2007).
90. Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2006, Pub. L. No. 109-97, §797, 119 Stat. 2120, 2165 (2005), available at http://frwebgate.access.gpo.gov/cgibin/getdoc. cgi?dbname=109-cong-public-laws&docid=f:publ097.109.
91. The NOP regulations state: "Any field or farm parcel from which harvested crops are intended to be sold, labeled, or represented as 'organic,' must:⋯ (b) Have had no prohibited substances, as listed in § 205.105, applied to it for a period of 3 years immediately preceding harvest of the crop; and . . . . " 7 C.F.R. § 205.202 (2011). Thus, crops and forage in the third year of transition to organic farming are not organic products.
92. Harvey v. Johanns (Harvey II), 494 F.3d. 237 (1st Cir. 2007).
93. Mat241.
94. Unlike in Harvey I, the Court did not elaborate on its decision in Harvey II.
95. Id. at 241. Mass. Indep. Certification, Inc. v. Johanns (MICI), 486 F. Supp. 2d 105 (D. Mass. 2007).
96. Id. ("On October 28, 2002, MICI sent a letter to the Administrator objecting both to the procedure followed in deciding The Country Hen's appeal and the substance of the October 25 decision. After receiving no response, MICI filed a complaint with the USDA Office of Administrative Law Judges, petitioning to overturn the Administrator's decision and alleging that USDA had violated due process requirements.").
97. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). In Chevron, the Supreme Court set forth a two-step analysis for reviewing an agency's statutory interpretation. The first step is to determine "whether Congress has directly spoken to the precise question at issue." Id.
98. If Congress's intent is clear, then the second step is to determine whether the regulation "givefs] effect to the unambiguously expressed intent of Congress." Id. at 843. If Congress's intent is ambiguous, however, then the second step is to give the regulation "controlling weight unless it is arbitrary, capricious, or manifestly contrary to the statute." Id. at 844.
99. See MICI, 486, F. Supp. 2d at 119-120.
100. Mat 110.
101. Mat lll . Mat 113. Id. at 109. See infra Part 2.3D. 7 U.S.C. § 6506(a)(6) (2006). S. REP. NO. 101-357, at 294 (1990), reprinted in 1990 U.S.C.C.A.N. 4943, 4954.
102. Id, reprinted in 1990 U.S.C.C.A.N. 4943, 4955. "Certifying agents will oversee the residue testing.
103. Id. at 4954.
104. Id. at 4955.
105. OFFICE OF INSPECTOR GEN., U.S. DEP'T OF AGRIC, AUDIT REPORT 01601-03-Hy, supra note 51, at 2-3.
106. Friedland, supra note 15, at 393.
107. 7 C.F.R. §205.670(2011): (b) The Administrator, applicable State organic program's governing State official, or the certifying agent may require pre-harvest or postharvest testing of any agricultural input used or agricultural product to be sold, labeled, or represented as "100 percent organic," "organic," or "made with organic (specified ingredients or food group(s))" when there isreason to believe that the agricultural input or product has come into contact with a prohibited substance or has been produced using excluded methods. Such tests must be conducted by the applicable State organic program's governing State official or the certifying agent at the official's or certifying agent's own expense. [⋯] (d) Results of all analyses and tests performed under this section: (1) Must be promptly provided to the Administrator; Except, That, where a State organic program exists, all test results and analyses shall be provided to the State organic program's governing State official by the applicable certifying party that requested testing; and (2) Will be available for public access, unless the testing is part of an ongoing compliance investigation. (e) If test results indicate a specific agricultural product contains pesticide residues or environmental contaminants that exceed the Food and Drug Administration's or the Environmental Protection Agency's regulatory tolerences [sic], the certifying agent must promptly report such data to the Federal health agency whose regulatory tolerance or action level has been exceeded. 7 C.F.R. § 205.671 (2011). When residue testing detects prohibited substances at levels that are greater than 5 percent of the Environmental Protection Agency's tolerance for the specific residue detected or unavoidable residual environmental contamination, the agricultural product must not be sold, labeled, or represented as organically produced. The Administrator, the applicable State organic program's governing State official, or the certifying agent may conduct an investigation of the certified operation to determine the cause of the prohibited substance.
108. 7 U.S.C.A. § 6506(a)(6) (West 2011).
109. 7 C.F.R. § 205.670(b).
110. Friedland, supra note 15, at 394.
111. OFFICE OF INSPECTOR GEN., U.S. DEP'T OF AGRIC, AUDIT REPORT 01601-03-Hy, supra note 51, at 17.
112. Id. at IS.
113. William Neuman, U.S. Plans Spot Tests of Organic Products, N.Y. TIMES, Mar. 20, 2010, at Bl: "The inspector general's report said a review of four large certifiers, which were collectively responsible for inspecting almost a third of the organic operations nationwide, found that none did regular spot testing."
114. See generally OFFICE OF INSPECTOR GEN., U.S. DEP'T OF AGRIC, AUDIT REPORT No. 01001-02- HY, supra note 52
115. OFFICE OF INSPECTOR GEN., U.S. DEP'T OF AGRIC, AUDIT REPORT 01601-03-HY, supra note 51 (discussing results of two internal audits of NOP Office in 2005 and 2010, respectively).
116. OFFICE OF INSPECTOR GEN., U.S. DEP'T OF AGRIC, AUDIT REPORT 01601-03-HY, supra note 51, at 2-4.
117. see also Federal Advisory Committee Act (FACA), 5 U.S.C.A. App. 2 § 7(b) (West 2011). (b) The Administrator shall⋯ institute a comprehensive review of the activities and responsibilities of each advisory committee to determine- (1) whether such committee is carrying out its purpose; (2) whether, consistent with the provisions of applicable statutes, the responsibilities assigned to it should be revised . . . The Administrator may from time to time request such information as he deems necessary to carry out his functions under this subsection. Upon the completion of the Administrator's review he shall make recommendations to the President and to either the agency head or the Congress with respect to action he believes should be taken. Thereafter, the Administrator shall carry out a similar review annually. Agency heads shall cooperate with the Administrator in making the reviews required by this subsection. OFFICE OF INSPECTOR GEN., U.S. DEP'T OF AGRIC, AUDIT REPORT 01601-03-HY, supra note 51, at 18.
118. Id. at 22; see also 7 C.F.R. § 205.239(a)(1) (2011).
119. OFFICE OF INSPECTOR GEN., U.S. DEP'T OF AGRIC, AUDIT REPORT 01601-03-HY, supra note 51, at 22.
120. 7rf.at28.
121. Id. at 28-29. NOP identified major noncompliances during the initial onsite reviews of seven of these ten agents. Some of the major noncompliances included: · Failure to identify noncompliances, such as mislabeled product and the use of uncertified organic feed, at its certified operations (NOP regulations require certifying agents to have adequate expertise to ensure its certified operations are complying with the regulations); · Failure to maintain complete certification files as part of the initial accreditation process. (NOP regulations require certifying agents to maintain all records related to their certification activities); · Onsite inspections and certification decisions being made by the same person (NOP regulations require agents to ensure that the decision to certify an operation is made by a person different from the person who conducted the onsite review); and · Failure to maintain conflict of interest disclosures for all certifying agent employees (NOP regulations require certifying agents to prevent conflicts of interest and complete annual disclosure reports) (citations omitted).
122. Id. at 29: "Issues such as those described above can only be identified after the certifying agent has actually begun issuing certifications to operations applying for certified organic status. However, as described below, we found that the necessary reviews were not always being performed." (emphasis added).
123. GREENE ET AL., supra note 2, at 8. Recently, the USDA announced a plan to track the import and export of some organic products under me Harmonized Tariff Schedule. Tom Karst, Handling & Distributing: Trade Statistics to Track Organic Food, THE PACKER (Oct. 22, 2010), http://thepacker.conVArticle.aspx?oid= 1275940&tid=&fid=PACKER-TOPSTORIES&src=share-visitor. These statistics will reportedly be available on the U.S. International Trade Commission's website. Id. However, no such data was found at the time this article was written. See Harmonized Tariff Schedule of the United States, 19 C.F.R. § 152.11 (1999), available at http://www.usitc.gov/tata/hts/ bychapter/index.htm.
124. CORNUCOPIA INSTITUTE, supra note 7.
125. Id. at 17. 209http://www.wjla.com/news/stories/0508/521743.html ABC 7 I-Team Investigates: Organic Foods, ABC 7 NEWS (WJLA television broadcast May 21, 2008), available at http://www.wjla.com/news/stories/0508/521743.html.
126. Joel Dickson, Whole Foods Market Responds to WJLA, WHOLE STORY (last visited Apr. 10, 1011), http:/Mog.wholefoodsmarket.corn/whole-foods-market- responds-to-wjla/.
127. Id.: "Since 2002, the USDA's National Organic Standards have governed exactly what can be sold as organic in the US-how it's grown, processed and handled-regardless of where in the world it's grown, INCLUDING China."
128. 7 U.S.C. 6505(b) (2006).
129. See 1 C.F.R. § 205.500(a) (2011) (stating the general rule for the USDA to accredit domestic and foreign certifying agents).
130. For a complete list of USDA accredited domestic and foreign accredited agents, see USDA Accredited Certifying Agents (ACAs), USDA AGRIC. MARKETING SERVICE http://www.ams.usda.gov/AMSvl.O/ams.fetchTemplateData.do?template= TemplateJ&navID=NationalOrganicProgram&leftNav= NationalOrganicProgram&page=NOPACAs&description= USDA%20Accredited%20Certifying%20Agents&acct=nopgeninfo (last visited Apr. 20, 2011).
131. The Organic Crop Improvement Association (OCIA) is another U.S.-based accredited certifying agent working in China. In 2010, the USDA suspended OICA's accreditation for one year. For details, see 3.1 C of this article.
132. E-mail from Mr. Samuel Jones-EUard, Public Affairs Specialist, USDA Agric. Mktg. Serv., to author (June 14, 2010) (on file with author) (identifying the nine other accredited certifying agencies operating in China as: CERES-Certification of Environmental Standards-GmbH (Ltd.), Germany; BCS-Oeko Garantie GmbH, Germany; Bioagricert, Italy; Control Union Certifications, Netherlands; ECOCERT S.A., France; IMO-Institute for Marketecology, Switzerland; Overseas Merchandise Inspection Co., Ltd. (OMIC), Japan; The Organic Food Chain Pty Ltd, Australia; Oregon Tilth Certified Organic, Oregon).
133. GREENE ET AL., supra note 2, at 8.
134. International Agreements, USDA AGRIC. MARKETING SERVICE, http://www.ams.usda.gov/AMSvl.0/ams.fetchTemplateData.do?template= TemplateJ&page=NOPInter national Agreements (last modified Mar. 11, 2011). For example, USDA recognition of India's conformity assessment program, as authorized under 7 C.F.R. § 205.500(c)(1), states: The Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) has determined the following foreign government conformity assessment program sufficient to ensure conformity to the technical standards of USDA's National Organic Program (NOP). These determinations allow organic certification organizations in good standing, to apply the NOP technical standards to certify operations that produce or handle agricultural products that will be sold, labeled or represented as organic in the United States. Production or handling operations certified by an organization that is recognized under these determinations may only use the USDA organic seal on their products when those products havebeen produced and handled in accordance to the NOP regulations. Id.
135. Equivalence Agreements between two countries allow products produced and certified to either country's organic standards to be sold as organic in both countries. Id.
136. see also 7 C.F.R. § 205.500(c)(2) (2011).
137. U.S.-Canada Determination of Equivalency, USDA AGRJC. MARKETING SERVICE, http://www.ams.usda.gov/AMSvl.O/ams.fetchTemplateData.do?template= TemplateN&navID=Nationa10rganicProgram&page= USCanadaDeterminationofEquivalency&leftNav=NationalOrganicPrograrn& description=US-Canada%20Determination%20of%20Equivalency&acct=nopgeninfo (last modified Feb. 28, 2011).
138. CORNUCOPIA INSTITUTE, supra note 7.
139. 7 C.F.R. § 205.501(a)(1) (2011).
140. U.S. DEP'T OF AGRIC, LIVESTOCK AND SEED PROGRAM, AUDIT, REVIEW AND COMPLIANCE BRANCH, QUALITY SYSTEM AUDIT REPORT, NP7051GGA NC Report IMO Weinfelden Switzerland 4 (2007), available at http://www.ams.usda.gov/AMSvl.0/ getfile?dDocName=STELPRDC5071120&acct=AQSS.
141. U.S. DEP'T OF AGRIC, LIVESTOCK AND SEED PROGRAM, AUDIT, REVIEW AND COMPLIANCE BRANCH, QUALITY SYSTEM AUDIT REPORT, NP7246EEA NC Report Ecocert Northeim Germany 6, (2007), available at http://www.ams.usda.gov/AMSv1.0/ getfile?dDocName=STELPRDC5071118&acct=AQSS: The NOP standards are not provided to all clients that apply for certification. The translated standards are only provided to those clients that request the standards or that participate in training sessions. Those that request the standards are provided only those portions they inquire about⋯." (emphasis in original).
142. William Neuman & David Barboza, U.S. Drops Inspector of Food in China, N.Y. TIMES, June 13, 2010, at Bl.
143. E-mail from Samuel Jones-Ellard, Public Affairs Specialist, USDA Agric. Mktg. Serv., to author (June 14, 2010) (on file with author). In this e-mail, Mr. Jones-Ellard provided the original settlement agreement between USDA and OCIA by email (Settlement Agreement-USDA, AMS & OCIA (May 28, 2008) (on file with the author). The Settlement Agreement states at i 4(g): " If OCIA is reaccredited to certify operations in China after the settlement has been in effect for one (1) year, OCIA shall pay for NOP auditors to inspect OCIA certification records and OCIA certified operations in China for the duration of this Settlement."
144. Neuman & Barboza, supra note 234. E-mail from Mr. Samuel Jones-Ellard, supra note 220.
145. Dickson, supra note 214.
146. 7 U.S.C. § 6506(a)(5) (2008).
147. See generally supra Part 2.2B (explaining the purpose of the National List of synthetic chemicals whose use is permitted in organic production, and the process for updating). Friedland, supra note 15 at 382.
148. ORGANIC FOOD: CONSUMERS' CHOICES AND FARMERS' OPPORTUNITIES (Maurizio Canavari & Kent D. Olson, eds., 2007).
149. S. REP. NO. 101-357, at 289 (1990), reprinted in 1990 U.S.C.C.A.N. 4943,4943.
150. ALBERT HOWARD AND WENDELL BERRY, THE SOIL AND HEALTH: A STUDY OF ORGANIC AGRICULTURE 38 (1947).
151. Eva Stemfeld, Organic Food "Made in China", at 1, EU-China Civil Society Forum (Aug. 2009), available at http://www.eu-china.net/web/cms/ upload/pdf/materialien/euchina-2009-hintergrund-10.pdf.
152. Fang Yan & Chen Jie, Zhongguo Nongye Wuran De Xianzhuang He Weihai [Current status of agricultural pollution and its impact in China], HUANQIU SHIYE [GLOBAL VIEW] {reprinted from HONGQI [RED FLAG], Vol. 15 (2005)), available at http://www.globalview.cn/ReadNews.asp?NewsID=5153 (last visited May 11,2011).
153. For an understanding of rural landownership in China, see JEAN C. Ol & ANDREW GEORGE WALDER, PROPERTY RIGHTS AND ECONOMIC REFORM IN CHINA (1999).
154. Stemfeld, supra note 250, at 2.
155. Paul Thiers, Challenges for WTO Implementation: Lessons from China's Deep Integration into an International Trade Regime, 11 J. OF CONTEMP. CHINA 413, 417 (2002).
156. Wat419-21.
157. Stemfeld, supra note 250, at 3.
158. Thiers, supra note 259, at 417.
159. Id. at 418.
160. Stemfeld, supra note 250, at 5.
161. Thiers, supra note 259, at 419.
162. Peter Thiers, China and Global Organic Food Standards, in AGRICULTURAL STANDARDS: THE SHAPE OF THE GLOBAL FOOD AND FIBER SYSTEM 193,203 (J. Bingen & L. Busch, eds., 2006).
163. Youji Chanpin Renzheng Guanli Banfa [Administrative Measures For Organic Product Certification] (promulgated by the Gen. Admin, of Quality Supervision, Inspection, & Quarantine (AQSIQ), Nov. 5, 2004, effective Apr. 1, 2005) (China), translated in www.lawinfochina.com.
164. Youji Chanpin Renzheng Shishi Guize [Rules for Implementing the Certification of Organic Products] (promulgated by the Certification & Accreditation Admin, of China (CAAC), June 2, 2005, effective June 2, 2005) (China), translated in www.lawinfochina.com.
165. Zhonghua Renmin Gonghe Guo Guojia Biaozhun GB/T 19630.1-2005 [The State Standards of the People's Republic of China GB/T 19630.1-2005] (promulgated by AQSIQ & Zhongguo Guojia Biaozhun Hua Guanli Weiyuan Hui [China State Standardization Admin. Comm. (CSSAC)], Jan. 19, 2005, effective Apr. 1, 2005) (China).
166. Sternfeld, supra note 250, at 7.
167. Chenglin Liu, The Obstacles of Outsourcing Imported Food Safety to China 43 CORNELL INT'L L.J. 250, 281-82 (2010) ("In 1983, China enacted a trial implementation of the Food Sanitation Law, in an attempt to regulate the growing number of privately owned food manufacturers and vendors emerging from the economic reform.") [hereinafter Liu, Obstacles}. In the United States, Congress passed the Pure Food and Drug Act in 1906. The Federal Food, Drug and Cosmetics Act was passed in 1938. For a detailed account of the food safety law in the United States, see Richard A. Merrill & Jeffrey K. Francer, Organizing Federal Food Safety Regulation, 31 SETON HALL L. REV. 61 (2000).
168. Shipin Anquan Fa [Food Safety Law] (promulgated by the Standing Comm. Nat'l People's Cong., Feb. 28,2009, effective June 1, 2009) (China), translated in www.lawinfochina.com. mWaidian Gaodu Guanzhu Zhongguo Chengli Shipin Anquan Weiyuan Hui [China Established the Food Safety Commission], IFENG NEWS, Feb. 11, 2010, http://finance.ifeng.com/opinion/hwkzg/2010021l/1825676.shtml.
169. Liu, Obstacles, supra note 286, at 281.
170. Jim Yardley, Infants in Chinese City Starve on Protein-Short Formula, N.Y. TIMES, May 5, 2004, at A3.
171. For an in-depth analysis of the milk scandal in China, see Chenglin Liu, Profits Above the Law: China's Melamine Tainted Milk Incident, 79 MISS. L.J. 371, 371-72 (2009) [hereinafter Liu, Profits].
172. Liu, Obstacles, supra note 286, at 281.
173. Id. at 283-90. 283-90
174. Shipin Anquan Fa, supra note 287, art. 4.
175. Liu, Obstacles, supra note 286, at 281.
176. Ouyang Haiyan, Su Feng & Li Yanan, Shipin Anquan Wenti Cheng Guoren Zuida Buan Jingchang Jiaolu Zhe Chao Banshu [Food Safety Has Become People's Biggest Concern: Over Half of the Public Surveyed Frequently Worries About Food Safety], XIAO K.ANG ZAZHI [XIAO KANG MAGAZINE], June 30, 2010, http://news.eastday.eom/c/20100630/ula5300771.html.
177. Gongxin Buzhang Tan Chongshu Zhongguo Zhizao Xinxin Huiying Wangshang Liuchuan Yu [The Minister of Industry and Information Technology Talked About Regaining Trust in Chinese Made Products, Responding to Online Comments], SlNA NEWS, Nov. 15, 2010, available at http://news.sina.com.en/c/sd/2010-11-15/ 211621475322.shtml.
178. For more details regarding the melamine tainted milk accident, see Liu, Profits, supra note 295.
179. See id. at 371-72. In September 2008, a news report first linked the death of an infant to baby formula tainted with melamine, a harmful chemical that is often used for industrial production. The melamine contamination was by no means an accident. The World Health Organization (WHO) confirmed reports from China that milk suppliers deliberately added melamine to diluted milk in order to deceive quality control review. The Sanlu Company (Sanlu) based in Shijiazhuang City, Hebei Province produced the tainted milk. According to official estimates, at least six babies died and nearly 300,000 were sickened from drinking the tainted milk. More than three hundred children were hospitalized.
180. Sanlu Du Naifen Xilie An Xuanpan Zhang Yujun Sixing Zhang Yanzhang Wuqi [The Trial of Sanlu Melamine Tainted Milk Scandal Ended: Mr. Zhang Yujun Was Sentenced to Death, Mr. Zhang Yangzhang Life Imprisonment], XINHUA NEWS, Jan. 22, 2009, available at http://business.sohu.com/20090122/n261905608.shtml.
181. David Barboza, China Plans To Execute 2 In Scandal Over Milk, N.Y. TIMES, Jan. 23, 2009, at A5.
182. Zhou Yuting, Sanlu Jueding Zhaohui Shou Sanju Qingan Wuran Yingyouer Naifen [Sanlu Has Decided to Recall Melamine Tainted Baby Formula], XINHUA NEWS, Sept. 11, 2008, available at http://news.163.com/08/0911/21/4LJCTVCF0001124J. html.
183. Edward Wong, China Begins Emergency Check of Dairy Products, N.Y. TIMES, Feb. 3, 2010 ("The government ordered all suspect products to be recalled and destroyed, but some 'unscrupulous' companies have taken the recalled products and repackaged them for sale⋯.")
184. see also Shanxi Jingfang Zhenpo Weinan Wenti Naifen An: Qiye Siyong 08 Guoqi Naifen [Shanxi police uncovered tainted milk case; the accused milk manufacturer used tainted milk left in the 2008 milk scandal], XINHUA NET (Feb. 3, 2010), http://news.xinhuanet.com/society/2010-02/03/content-12925644.htm;
185. Zhou Yuting, Quanguo Shipin Anquan Zhengdun Ban Yaoqiu Checha Shipin Anquan Tuchu Yinhuan [The state food safety taskforce requires strict investigation of latent conditions that could cause food scandals], XINHUA NET (Jan. 31, 2010), http://news.xinhuanet.com/politics/2010-01/3l/content-12908469. htm.
186. Jiang Zhenrong & Wang Daqian, Qinghai Wenti Naifen Zai Bensheng Jiancha Hege Jiancha Yuan "Fei Zhuanye" [Melamine tainted milk passed the provincial quality checks in Qinghai; Officials defended that the inspector was not professional], JlNGJl CANKAO BAO [ECONOMIC INFORMATION DAILY], Nov. 24,2010, available at http://news.sohu.com/20101124/n277863840.shtml.
187. Zhao Zuo, Sanju Qingan Du Naifen Chongxian Shichang Shipin Anquan Xu Duo Huanjie Baozhang, [Melamine tainted milk resurfaced in the market; Food safety system needs multiple safeguards], SHIDAI ZHOUBAO [TIMES WEEKLY], Mar. 11, 2010, available at http://news.sina.com.en/c/2010-03-ll/153019842948.shtml.
188. David Barboza, China Office Kept Arrests In Milk Case From Public, N.Y. TIMES, Jan. 7, 2010, at A6; "Du Naifen" Chongxian Zaoyou Duanni [The authority likely knew about the return of the toxic milk power earlier], BEUING DAILY, Feb. 4, 2010, available at http://news.xinhuanet.com/politics/2010-02/04/ content-l2927265.htm.
189. Quanguo Zai Chachu Baiyu Dun Wenti Sanju Qingan Naifen Zhuijiu Jianguan Shizhi Zhe [Over a hundred tons of melamine tainted milk power were found; officials will be charged for dereliction], XINJING BAO [NEW BEIJING DAILY], Aug. 21, 2010, http://news.sohu.com/20100821/n274363377.shtml.
190. James T. Areddy, Authorities in China Likely Knew Bad Milk, WALL ST. J., Jan. 6, 2010, at A10. David Barboza, China Office Kept Arrests In Milk Case From Public, N.Y. TIMES, Jan. 7, 2010, at A6. 20 Pan Hongqi, Yong Manbao Zhutui Ruye Huifu Wuyi Yinzhen Zhike [Covering up will backfire the recovery of the milk industry], , Jan. 6, 2010, available at http://www.ycwb.com/epaper/ycwb/html/ 2010-01/06/content-706132.htm. 2lLiu, Obstacles,ZHONGGUO QlNGNIAN BAO [CHINA YOUTH DAILY] supra note 286, at 285, ("At the local level, the new FSL places governments at the county level and above in charge of food safety administration in their respective jurisdictions."); id. at 397-400 (arguing that local governments are reluctant to release information that could damage local image and business)
191. see also David Barboza, China Office Kept Arrests In Milk Case From Public, N.Y. TIMES, Jan. 7, 2010, at A6 (revealing that the Shanghai government kept food scandal prosecution from the public for several months despite that the new Food Safety Law requires food producers to alert the-public of serious food safety problems).
192. Shipin Anquan Fa [Food Safety Law] art. 82 (promulgated by the Standing Comm. Nat'l People's Cong., Feb. 28, 2009, effective June 1, 2009) (China), translated in www.lawinfochina.com.
193. Liu, Profits, supra note 295, at 397 (2009).
194. see also Shanghai Xiongmao 8 Yue Qian Yi Chachu Sanjuqing'an: Bei Yaoqiu Manbao [Shanghai Panda dairy products were found to have melamine but the information was kept from the public], XINHUA NET (Jan. 5, 2010), http://finance.people.com.cn/GB/10705340.html. A commentator argued that cover-up is as poisonous as milk tainted with melamine. See Qilu, Manbao Caishi Zui Kepa de Sanjuqing'an [Cover-up is equally as dangerous as melamine], LUOYANG RlBAO [LUOYANG DAILY], Jan. 7, 2010, available at http://lyrb.lyd.com.cn/ images/2010-01/07/1262810013156RB04B107C.pdf.
195. Liu, Profits, supra note 295, at 397.
196. Wat398.
197. David Barboza, A Chinese Reformer Betrays His Cause, and Pays, N.Y. TIMES, July 13, 2007, at Al.
198. Liu, Obstacles, supra note 286 at 298.
199. Wen Jiabo Tanshi "Naifen Shijian" Huaner Ma Qiye "Mei Liangxin"Naifen Shijian" Huaner Ma Qiye "Mei Liangxin" [Premier Wen Jiabo criticized the food industry lack of conscience], IFENG NEWS, Sept. 22, 2008, http://bbs.ifeng.corn/viewthread.php?tid=3379827 (This report originally appeared in all major news websites in 2008. As of publication, it is only available on a few websites outside of China.).
200. Li Yizhong, Shipin Anquan Shijian Fanying Qiye Chengxin Wenti [Food safety scandals reflect unethical practices in the food industry], R.ENMIN WANG [PEOPLE NET], Mar. 12, 2010, available at http://news.sina.com.en/c/2010-03-12/ 171219851722.shtml.
201. Cai Jing, Kaowen Shipin Zhiliang Haiyou Sha Neng Chi [Food Quality: What is Left to Eat?], China Central Television (CCTV) broadcast, Mar. 11, 2009, available at http://www.39kf.com/focus/spaq/01/2009-03-ll-573535.shtml. The full transcript of the interview is still on a few websites as of the date of publication. The author has a printed copy of this interview on file. Melamine, hydrochloric acid, and human hair, which are rich in amino acid, are added to soy sauce; tannic acid is used with alcohol and water to make red wine; dichlorvos (a pesticide) is added to sausage for better taste; formaldehyde is added to hot pot soups for better taste; sulphur is added to dry fruits as a preservative; paraffin wax is used as a preservative used in rice; copper sulfate is used as a preservative in dry mushrooms; and clenbuterol is added to pig feeds, a chemical that can turn fat into red meat in a few weeks.
202. Ke Huiming, Yin Han Sudan Hong Kendeji Zhihai, Baisheng Yuan Chengdan Falv Zeren [Baisheng taking responsibility for its Sudan Red-tainted Kentucky Products], SlNA NEWS, Mar. 17,is 2005, available at http://finance.sina.com.cn/ xiaofei/consume/20050317/16061438808.shtml
203. see also Lei Min & Liu Juhua, Woguo 30 Jia Qiye 88 Zhong Shipin Bei Jianchu You Sudan Hong [Eighty-Eight Food Products Produced by 30 Firms Are Tainted with Sudan Red], XINHUA NEWS, Apr. 6, 2005, available at http://finance.sina.com.cn/xiaofei/puguangtai/20050406/00041490488.shtml. Ye Tieqiao, Gongsu Jiguan Pilu Sanlu Yinman Shishi Zhi Dunai Wailiu [According to Prosecutors, it was Sanlu's Cover-Up that Caused Poisonous Milk to Enter the Market], ZHONGGUO QlNGNIAN BAO [CHINA YOUTH DAILY], Jan. 1, 2009,0 available at http://news.sina.com.cn/c/2009-01- 01/050616959786.shtml.
204. XIANFA art. 8, § 10 (1982) (China).
205. Jean C. Oi & Andrewccc George Walder, Property Rights And Economic Reform In China 72 (1999).
206. Thiers, supra note 259 at 423.
207. See Chenglin Liu, Informal Rules, Transaction Cost, and the Failure of the "Takings" Law in China, 29 HASTINGS INT'L & COMP. L. R. 1, 7 (2005).
208. Thiers, supra note 259, at 423.
209. Paula Lavigne, Is Organic Food the Real Deal?, THE DALLAS MORNING NEWS, July 17, 2006, available at http://www.organicconsumers.org/articles/article- l159.cfm.
210. Paula Lavigne, Is Organic Food the Real Deal?, THE DALLAS MORNING NEWS, July 17, 2006, available at http://www.organicconsumers.org/articles/article- l159.cfm.
211. Thiers, supra note 259, at 428.
212. MILTON W. MEYER, CHINA-A CONCISE HISTORY 2 (2d ed. 1994).
213. See HOWARD & BERRY, supra note 249, at 38.
214. Richard Sanders, A Market Road to Sustainable Agriculture? Ecological Agriculture, Green Food and Organic Agriculture in China, 37 (1) DEV. & CHANGE 201, 203-04 (2006).
215. Carola Milbrodt, Organic Food Industry in China-Current State and Future Prospects 34-35 (2004) (unpublished M.A. thesis, Free University of Berlin) (on file with author).
216. Sternfeld, supra note 250, at 2.
217. Milbrodt, supra note 368, at 35.
218. See Yolanda Chen, International Rice Research Institute, The Unsung Heroes of The Rice Field, RICE TODAY, (Jan. 18, 2008), http://irri.org/ knowledge/publications/rice-today/special-reports/scienceshorts/ the-unsung-heroes-of-the-rice-field
219. see also Dominique Patton, Pesticide Residues Still High in Chinese Vegetables, AP-FOOD TECHNOLOGY.COM (Apr. 25, 2006), available at http://www.apfoodtechnology.com/content/view/print/29111.
220. Cai Jing, supra note 334 (depicting deplorable practices in China's food industry). Qingdao "Du Jiucai" Shijian 9 Ming Zhongdu Zhe Lianhe Tousu Suopei [Nine victims of toxic cowpeas collectively brought a legal action against growers], WUHAN WANBAO [WUHAN EVENING NEWS], Apr. 11, 2010, available at http://news.xinhuanet.eom/society/2010-04/ll/c-1227223.htm.
221. See Mara Hvistendahl, Fertilizer is Acidifying Chinese Land, SCIENCE MAG., Feb. 10, 2010, http://news.sciencemag.org/sciencenow/2010/02/ll-02.html.
222. Lavigne, supra note 354.
223. See National Organic Program, 40 C.F.R. § 205.203 (2011); 7 U.S.C. § 6513 (2006). Chi Fengling, Qiantan Shui Wuran Dui Woguo Shipin Anquan de Yinxiang Ji Jiejue Duice [Preliminary analysis of the impact of water pollution on food safety and solution], ZHONGGUO SHIPIN Yu YINGYANG [JOURNAL OF CHINA FOOD AND NUTRITION], 2006/5, available at http://www.sfhcc.org.cn/Article-Print.asp? ArticleID=1584.386 THE WORLD BANK, COST OF POLLUTION IN CHINA: ECONOMIC ESTIMATES OF PHYSICAL DAMAGES 33 (2007), available at http://siteresources. worldbank.org/TNTEAPREGTOPENVIRONMENT/Resources/Chjna-Cost-of-Pollution.pdf.
224. Srini Sitaraman, Regulating the Belching Dragon: Rule of Law, Politics of Enforcement, and Pollution Prevention in Post-Mao Industrial China, 18 COLO. J. INT'L L. & POL'Y 267, 280 (2007) (arguing that "[t]he lack of strong centralized environmental administration and a deep-seated political unwillingness to disrupt economic growth, combined with corruption and local protectionism, has precluded China from fully complying with its international treaty obligations and enforcing its domestic environmental laws.").
225. Sun Xiaohua, Ban Slapped on Polluting Cities, Zones, CHINA DAILY, July 4, 2007, available at htto://wwwxhinadaily.com.cn/china/2007-07/04/content-909239. htm.
226. Jonathan Ansfield & Keith Bradsher, China Gives Fuller View of Pollution In Its Waters, N.Y. TIMES, Feb. 10,2010, at A9.
227. Emma Graham-Harrison, China's Water Pollution Level Higher than Estimated in 2007, WASH. POST., Feb.10, 2010, http://www.washingtonpost.com/wpdyn/ content/article/2010/02/09/AR2010020903572.html.
228. See GREENPEACE, SWIMMING IN POISON: AN ANALYSIS OF HAZARDOUS CHEMICALS IN YANGTZE RTVERFISH12(2010).
229. Yangtze River, ENCYCLOPEDIA BRITANNICA ONLINE, http://www.britannica.com/ EBchecked/topic/651857/Yangtze-River (last visited Apr. 18,2011).
230. Nian Vifeng, Diaocha Xianshi Zhongguo Dixiashui Wuran Yanzhong Nongcun Ren Shouhai Zui Zhijie [Study reveals serious pollution in groundwater, which directly harms rural residents], XINHUA NET, Sept. 8, 2010, http://nc.people. com.cn/GB/12670784.html.
231. Yan Zhan, China's Groundwater Future Increasingly Murky, WORLDWATCH INSTITUTE (May 8, 2011), http://www.worldwatch.org/node/4753.
232. See generally Qiu Chongzhi & Yang Yi, Jiyu Shipin Anquan de Xiaofei Xingwei Fenxi [Consumer Behavior Analysis with Regard to Food Safety], 36(8) ANHUI NONGYE KEXUE [J. OF ANHUI AGRIC. SCI.], 3432, 3433 (2008) (arguing that prevalent fake and shoddy food products discourage consumer spending on food )
233. Zeng Yanchu, Xia Wei & Huang Bo, Xiaofeizhe Dui Lvse Shipin de Goumai yu Renzhi Shuiping Jiqi Yingxiang Yingshu [Factors Affecting Consumers' Purchase and Cognition of Green Foods] 23 XIAOFEI JlNGJI [CONSUMER ECON.] 38,42 (2007) (noting that "half of the consumers surveyed have no confidence in authenticity of green food."). """Mark Alan Kastel, Wal-Mart: The Nation's Largest Grocer Rolls-out Organic Products-Market Expansion or Market Delusion? THE CORNUCOPIA INSTITUTE REPORT, Sept. 27, 2006, at 8. "hi-Chu Tschang, Organic, With Pesticides (Extended), BUSINESSWEEK, July 30, 2007, available at http://www.businessweek.com/magazine/content/07-31/ b4044062.htm (Professor Thiers pointed out, "The problem with the domestic market is that Chinese consumers don't believe in certification. They don't believe in the integrity of what they see.").
234. 'Yang Xiaoli & Jing Zaifang, Shenyang Shi Lvse Shipin Yingxiao Xianzhuang ji Wenti Fenxi [Analysis of green food sales and challenges in Shenyang], ZHONGGUO SHIWU YU YlNGYANG [CHINESE FOOD AND NUTRITION], (2005). A survey shows that only one fourth of consumers surveyed have confidence in green food.
235. Xiaofei Zhe Quanyi Baohu Fa [Law on Consumer Protection] (promulgated by the Standing Comm. Nat'l People's Cong., Oct. 31, 1993, effective Jan. 1, 1994), translated in www.lawinfochina.com.
236. Li Yuanfang, "Lvse" Shipin Zaoyu Xinren Weiji [Losing Confidence in "Green Food"], SHlCHANG ZHOUBAO, Dec. 15, 2005, available a/http://www.cb-h.com/2008/shshshow.asp?n-id=22670.
237. TRANSPARENCY INTERNATIONAL, CORRUPTION PERCEPTIONS INDEX 2010 (2010), available at http://www.transparency.org/policy-research/surveys-indices/cpi/ 2010/results
238. RENEE JOHNSON, CONGR. RESEARCH SERV., RL 34468, THE U.S. TRADE SITUATION FOR FRUIT AND VEGETABLE PRODUCTS 4 (2011), available at http://www. nationalaglawcenter.org/assets/crs/RL34468.pdf. See supra note 203 and accompanying text.
239. This subtitle is inspired by Gregory Husisia, What Standard of Care Should Govern The World's Shortest Editorials?: An Analysis of Bond Rating Agency Liability, 75 CORNELL L. REV. 411 (1990).
240. George Akerlof, The Market For "Lemons": Quality Uncertainty and The Market Mechanism, 84 Q. J. ECON., 488,489 (1970).
241. Wendy Wagner, Using Competition-Based Regulation to Bridge the Toxics Data Gap, 83 IND. L. J. 629, 637 (2008).
242. Akerlof, supra note 424, at 490.
243. Cf Jonathan M. Barnett, Certification Drag: The Opinion Puzzle and Other Transactional Curiosities, 33 J. CORP. L. 95,101 (2007).
244. Akerlof, supra note 424, at 494.
245. Barnett, supra note 427, at 101.
246. 1990 U.S.C.C.A.N. 4943. S. Rep. 101-357, at 289.
247. OFFICE OF INSPECTOR GEN., U.S. DEP'T OF AGRIC, AUDIT REPORT 01601-03-Hy, supra note 51, at 4.