The New Frontier of Regenerative Agriculture Certifications

Regenerative agriculture certifications and label claims are on the rise. While USDA "organic" certifications may be familiar to industry and consumers, these newer, private certifications may have less recognition. This post aims to demystify the current landscape of regenerative agriculture certification, discuss the options out there, and flag considerations for businesses thinking about achieving certification and marketing their efforts.

Before jumping into the current landscape, it is important to distinguish the U.S. Department of Agriculture's certification for "organic" from regenerative agriculture certification. The USDA's National Organic Program ("NOP") strictly regulates the certification of and use of the organic certification mark on labels, ensuring that products are produced consistent with detailed organic standards. Federal statute and regulation define "organic," and certifiers all must apply the same, consistent standards to entities seeking to be certified organic. Moreover, the USDA accredits and inspects the individual organic certifiers, adding another layer of oversight for organic certification. Organic certification also requires a three-year transition period. Finally, the Organic Foods Production Act and implementing regulations detail a clear process for appeal of any proposed suspension or revocation of an entity's organic certification. USDA's organic certification usually preempts state consumer claims that a product is not organic.

In contrast, regenerative agriculture certifications differ significantly in substance and degree among the various certifying bodies. There is no single, universally applied definition of "regenerative agriculture," nor is there a governing body to certify adherence to its principles. As a starting point, though, many regenerative agriculture certifications require businesses to meet USDA organic standards as a baseline. These certifications then each have requirements beyond those found in the NOP's regulations. They typically include components that mandate active restoration and revitalization of soil health. Some certifiers extend their requirements further, incorporating standards for animal and social welfare. The transition periods for achieving regenerative agriculture certification also vary and do not necessarily align with the three-year period required for organic certification. Finally, an entity's right to challenge or appeal the revocation of their regenerative certification differs between regenerative certifier and depends on any agreement between the certifier and the entity. While regulators at the federal and state level could define "regenerative agriculture," at present, a regenerative claim will not be protected under preemption.

Current Landscape: Regenerative Agriculture Certifiers

The increasing number of certifiers offering regenerative agriculture certificates adds complexity to understanding the "regenerative agriculture" certification landscape. Additionally, the maturity of these certifying organizations varies, with some still in pilot phases and not yet accepting open applications. Given this variation, this post explores a few certifiers as case studies to highlight some of the similarities and differences in available regenerative certifications.

Demeter USA ("Demeter") certifies products and farms as "Biodynamic." Demeter does not use the term "regenerative agriculture," but its requirements encompass the same standards as other regenerative agriculture certifiers. Demeter requires entities to meet USDA's organic certification requirements but does not require organic certification. Demeter certifies only whole farms, and its certifying process includes a farm inspection once an application is received. The timeline for certification is 12 months (if the applicant already meets USDA "organic" standards) to 36 months. Once certified by Demeter, the holder of the certification can use the Demeter "Biodynamic" label on their products. Demeter does not have publicly available clear guidance for how an entity can appeal if they are suspended or decertified. Demeter applies a licensing fee on total gross sales of products using its certification (0.5% for farm sales and 0.6% for processed product sales).

Certified Regenerative by A Greener World (AGW) provides certification for regenerative agriculture that includes standards for soil health as well as animal and social welfare. AGW does not specifically require USDA organic certification standards be met. The certification process includes a farm inspection. Entities requesting certification can be certified within one year if they meet the AGW standards on the first visit. Once certified the holder of the certification can use the "Certified Regenerative By AGW" label on its products. The approval to use AGW's logo can be revoked at any time, but there is a detailed appeal process for such scenarios.

Real Organic Project is an "add-on" for entities that already hold organic certification. Certification includes soil health requirements that build on organic certification, as well as animal and social welfare standards. This certification has no cost for applying or being inspected. The Real Organic Project does not provide a timeline for the certification or inspection process. However, once certified, there are "re-visits" every five years. The Real Organic Project grants certified entities the right to use its logo, but it does not have publicly available information about the process to appeal the revocation of any certification.

Regenerative Organic Certified by Regenerative Organic Alliance (ROA) requires that applicants be certified organic or in the process of obtaining the certification when they apply. ROA has a three-tier system whereby increasing percentages of an applicant's overall operation that meet the applicable standards can be certified (10% to 50% to 100%). The tier an applicant falls into determines what label they get to use (Bronze, Silver, Gold). The certification process for applicants can take three to six months. The ROA certification also requires that applicants hold baseline animal welfare and social fairness certificates from other organizations. For example, ROA honors those who hold Demeter "Biodynamic" certification as meeting their soil health standard and animal welfare standards for certification. Finally, ROA allows for logo uses once labeling requirements are met. It does not have publicly available information on appealing the loss of any certification.

There are a number of other regenerative agriculture certifiers including: Regenified, Land to Market, Soil Regen, Rainforest Alliance, and Soil & Climate Initiative.

Considerations for Businesses Contemplating Regenerative Agriculture Certification

Deciding whether regenerative agriculture certification is a good fit for your organization is a multifaceted business decision influenced by numerous factors. When evaluating the suitability of this certification for your business, here are some things you should consider:

Is Organic Certification Required?

Evaluating the necessity of organic certification for your organization in the pursuit of regenerative agriculture certification is crucial. Given the time period necessary for organic conversion, businesses should first consider those organic requirements and ensure compliance is feasible and reasonable for them.

What Is the Timeline for Achieving Regenerative Agriculture Certification?

The certifying parties vary significantly not only in timelines to achieving certification, but also availability of information for when inspections and audits occur. It is essential for applicants to thoroughly research each certifying body to understand the specific requirements and expectations. This variability can impact planning and preparation, making it crucial to stay informed and proactive throughout the certification process.

What Is the Regenerative Agriculture Certifier's Appeals Process?

Understanding the appeals process of a regenerative agriculture certifier is critical. Is there a period to remedy issues, or do you need to go through an appeals process? To the extent an entity wants to incorporate its regenerative agriculture certification onto its labels or other marketing materials, the process here is important. A clear understanding of the appeals process ensures that any discrepancies or issues can be addressed promptly and effectively, safeguarding your certification status and maintaining consumer trust.

What Are the Boundaries of Labeling Products With Regenerative Agriculture Certification?

When labeling products with regenerative agriculture certification, it is prudent to stay within the bounds of what the certification explicitly states. General advertising principles hold that claims must be truthful, not misleading, and substantiated, and that advertisers must be able to substantiate all reasonable interpretations of the claims they make, not just the meanings they intend to convey. These principles apply to regenerative claims. For example, incorporation of the certification and limiting claims to the same is key: "Certified Regenerative by X Company" instead of "farmed using regenerative practices." Courts have explored this distinction in recent cases, affirming that companies can accurately make claims within the bounds of the certification but should avoid more general claims unless they have other, independent support. See Myers v. Starbucks Corp., 2024 WL 3102800 (9th Cir. June 24, 2024) (involving Rainforest Alliance Certified™ certification on label of Mars' Dove Dark Chocolate products) and Bohen v. ConAgra Brands, Inc., 2024 WL 1254128 (N.D. Ill. Mar. 25, 2024) (involving "Certified Sustainable Seafood MSC" certification on label of defendant's fish products).

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Navigating growth provides both opportunity and challenges, but companies must ensure they consider all angles of these new programs to determine if they are a fit for the brand. We look forward to continuing to support the industry here.

*George Blankley IV was a recent summer associate at DWT.