Natural Foods Merchandiser

Congress acts to amend organic foods law

In a move applauded by some members of the organic community and opposed by others, a Congressional subcommittee added a rider to the fiscal year 2006 Agricultural Appropriations Bill on Oct. 27 that provides for changes to the Organic Foods Production Act of 1990.

The Organic Trade Association, based in Greenfield, Mass., proposed the language of the amendment, which alters sections of OFPA related to synthetic ingredients in organic food processing and to transition guidelines for dairy cows. The rider also gives the secretary of agriculture authority to grant emergency exemptions for minor-ingredient crops deemed to be commercially unavailable in organic form.

While many organic manufacturers and retailers supported OTA?s initiative, the Organic Consumers Association, Consumers Union, The Center for Food Safety, and other advocacy and consumer watchdog groups fought it, generating more than 300,000 messages to Congress opposing the rider. The legislation was temporarily delayed to give the organic industry time to reach a compromise, to no avail.

The rider overturns a previous court ruling in favor of Maine organic blueberry farmer Arthur Harvey, who argued that the Organic Foods Production Act prohibits use of any synthetics. Under federal organic standards implemented in 2002, 38 synthetic ingredients have been approved for use in multi-ingredient organic food processing, and manufacturers continue to petition for additional allowances.

If Harvey?s lawsuit sought to bring organic practices in line with the letter of the 1990 law, OTA says it aimed to revise the law to reflect practices currently in use and vital, it says, to continued growth of the organic industry. In a statement, OTA said, ?No new synthetic substances, including ingredients, may be allowed in organic production without the review and approval of the National Organic Standards Board [a citizen advisory board to the U.S. Department of Agriculture], and no loophole was created by Congress? decision. The process is exactly the way it has always been.?

?We truly stayed, and our whole purpose was to stay, within a narrow scope of restoring the standards to their pre-Harvey status,? said OTA Executive Director Katherine DiMatteo in a later interview. ?Our intention was that the standards are restored as closely as they can be to what the standard was, with the expectation that we could then continue to work with everyone else on regulatory changes.?

Critics of the amendment say that the new language opens the door to use of many more synthetics, weakens the authority and input of the NOSB, and ignores the desires of consumers who want rigorous organic standards.

Substances versus ingredients
Some uncertainty—and much of the controversy—turns on legal differences between ingredients in food and entire classes of other materials used in processing and packaging that are categorized as substances, but are not considered to be present in the final product. Food-contact substances, therefore, are not listed in product ingredients panels.

Though OTA assures that no new synthetic substances will be allowed in organic production without full NOSB review, opponents of the rider say the new language will make it easier for synthetic substances not classified as ingredients to be approved without scrutiny. A USDA guidance document dated Dec. 12, 2002, specifies that food-contact substances are not subject to review and recommendation by the NOSB.

?If you?ve got this list of things that don?t appear on the label and don?t go through NOSB review and can still be used, that?s a pretty significant concern for consumers and others,? said Joseph Mendelson, legal director of The Center for Food Safety, based in Washington. ?It?s not saying these products are dangerous, but it?s a question of differentiation between organic and other products ? it?s a question of consumer right-to-know.?

DiMatteo says that the whole arena of food-contact substances has yet to be explored by the industry. ?We do need to have discussions about food-contact substances, and right now I don?t think that any of us even have information about that to know the solution. We need to start [by learning more], and then begin to have the conversation about whether they are appropriate or inappropriate, and whether as a whole group they should be included or excluded.?

Questions about process
Kelly Shea, director of government and industry relations for Boulder, Colo.-based White Wave Foods, a division of Dean Foods, which includes Horizon Organic Dairy brand foods, said her company saw the legislative move as a ?very transparent process.? But Peggy Miars, executive director of Santa Cruz, Calif.-based California Certified Organic Farmers, expressed concerns that the process was too secretive: ?It appears that this will be better for organic producers, who are our clients; on the other hand, we?re not happy with the manner in which the amendment was passed. We don?t feel we were able to express our opinion and take a stance on it before the amendment was passed.?

Sen. Patrick Leahy, D-Vt., who authored the charter for the national organic standards and labeling program and who inserted the temporary language to propel an industry compromise, said, ?The Harvey case could have major impacts on the future of the organic industry, both for producers and processors. That is why I added language to the Senate bill instructing USDA to study the implications of the decision and report back to Congress. I believe a deliberative process to achieve consensus within the organic community would have been more appropriate.?

Sen. Tom Harkin, D-Iowa, and Reps. Dennis Kucinich, D-Ohio, and Sam Farr, D-Calif., also spoke out against the rider and the process. Though Jim Riddle, chairman of the NOSB, said in an open letter to the organic community that a partisan vote on the rider was taken after the full committee had adjourned, OTA called the vote bipartisan. ?From what I know and from our point of view, the conference report itself was signed by Democrats and Republicans,? DiMatteo said.

Consumer confidence, USDA reaction in play
Critics of the rider believe that consumer confidence in the rigor of organic standards may suffer. ?I think what has not been adequately factored in is what consumers expect of this label and what consumers will do when the label doesn?t meet their expectations,? said Urvashi Rangan, a senior scientist and policy analyst at Consumers Union in Yonkers, N.Y.

?I think the only consumers who were concerned about it were getting bad information,? said White Wave?s Shea. ?If you asked them if they want to keep buying the same organic products they?ve been buying, they?d say yes. There won?t be anything different about how we make products.?

But Michael Potter, chairman and president of Eden Foods, said, ?This rider goes way beyond what the consumer expects to have concerning organic.?

The ultimate impact of the changes to OFPA will take time to unfold, however, as USDA must undertake a rulemaking process that includes public comment. ?We?re really at a crossroads,? said Mendelson of CFS. ?There are still devils in the details of how USDA implements this law change.?

Manufacturers? choices will also have an impact, Mendelson said. ?If processors don?t want to kill the golden goose, they have to make sure that they live up to what they preach in the marketplace, not abusing loopholes in the law, [and] not essentially trying to jam as much processing technology as possible into the [organic] label. It?s living up to the ideal of the label, a very different direction.?

This story was originally reported in The Natural Foods Merchandiser?s e-newsletter, which is published the first and third Tuesday of each month. Click here to sign up to receive breaking news alerts.

Natural Foods Merchandiser volume XXVI/number 12/p. 1, 9

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