Natural Foods Merchandiser

Congress acts to amend organic foods law amid industry split

In a move applauded by some members of the organic community and strongly opposed by others, a congressional subcommittee added a rider to the Agricultural Appropriations Bill last week 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 focuses on standards for synthetic ingredients in organic food processing, on transition guidelines for dairy cows, and on the power of the Secretary of Agriculture to grant emergency exemptions for "commercially unavailable" organic crops.

While a number of organic manufacturers resolutely 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 from consumers and industry members 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 OFPA prohibits use of any synthetics. But under federal organic standards written to fulfill the law and implemented in 2002, 38 synthetic ingredients have been approved for use in multi-ingredient organic food processing.

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, they say, to continued growth of the organic industry. In a statement to The Natural Foods Merchandiser, 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."

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 consumers who want rigorous organic standards.

"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 Kelly Shea, director of government and industry relations for White Wave Foods, based in Boulder, Colo., a division of Dean Foods that includes Horizon Organic Dairy brand foods. "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."

Though Shea said that her company saw the legislative move as a "very transparent process," Peggy Miars, executive director of Santa Cruz, Calif.-based California Certified Organic Farmers, expressed concerns about methods that some have characterized as 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."

Elaine Lipson is New Hope Natural Media's organic program director. Additional reporting by Marty Traynor Spencer.

Blue = language removed in amendment
Red = language added in amendment

OFPA Section

Original Language

Amendment Language

6509, Animal Practices and Materials. (e)(2)

(2) Dairy Livestock. 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.

(2) Dairy Livestock.

  1. In general, except as provided in subparagraph B, 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.
  2. Transition Guideline. Crops and forage from land included in the organic system plan of a dairy farm that is in the third year of organic management may be consumed by the dairy animals of the farm during the 12-month period immediately prior to the sale of organic milk and milk products.

6517, National List. (c) (1)

(c) Guidelines for Prohibitions or Exemptions

(1) Exemption for Prohibited Substances. The National List may provide for the use of substances in an organic farming or handling operation that are otherwise prohibited under this chapter only if

(A) the Secretary determines, in consultation with the Secretary of Health and Human Services and the Administrator of the EPA, that the use of such substances

  1. would not be harmful to human health or the environment;
  2. is necessary to the production or handling of the agricultural product because of unavailability of wholly natural substitute products; and
  3. is consistent with organic farming and handling;

(B) the substance

  1. is used in production and contains an active synthetic ingredient in the following categories: copper and sulfur compounds; toxins derived from bacteria; pheromones, soaps, horticultural oils, fish emulsions, treated seed, vitamins and minerals; livestock paraciticides and medicines and production aids including netting, tree wraps and seals, insect traps, sticky barriers, row covers, and equipment cleansers;
  2. is used in production and contains synthetic inert ingredients that are not classified by the Administrator of the EPA as inerts of toxicological concern;
  3. is used in handling and is non-synthetic but is not organically produced; and

(C) the specific exemption is developed using the procedures described in subsection (d) of this section.

(c) Guidelines for Prohibitions or Exemptions

(1) Exemption for Prohibited Substances in Organic Production and Handling Operations: The National List may provide for the use of substances in an organic farming or handling operation that are otherwise prohibited under this chapter only if

(A) the Secretary determines, in consultation with the Secretary of Health and Human Services and the Administrator of the EPA, that the use of such substances

(i) would not be harmful to human health or the environment;

(ii) is necessary to the production or handling of the agricultural product because of unavailability of wholly natural substitute products; and

(iii) is consistent with organic farming and handling;

(B) the substance

(i) is used in production and contains an active synthetic ingredient in the following categories: copper and sulfur compounds; toxins derived from bacteria; pheromones, soaps, horticultural oils, fish emulsions, treated seed, vitamins and minerals; livestock paraciticides and medicines and production aids including netting, tree wraps and seals, insect traps, sticky barriers, row covers, and equipment cleansers; or

(ii) is used in production and contains synthetic inert ingredients that are not classified by the Administrator of the EPA as inerts of toxicological concern; and

(C) the specific exemption is developed using the procedures described in subsection (d) of this section.

6517 (d) Procedure for Establishing National List

(d) Procedure for Establishing National List.

(1) In General. The National List established by the Secretary shall be based upon a proposed national list or proposed amendments to the National List developed by the National Organic Standards Board.

(2) No Additions. The Secretary may not include exemptions for the use of specific synthetic substances in the National List other than those exemptions contained in the Proposed National List or Proposed Amendments to the National List.

(3) Prohibited Substances. In no instance shall the National List include any substance, the presence of which in food has been prohibited by Federal regulatory action.

(4) Notice and Comment. Before establishing the National List or before making any amendments to the National List, the Secretary shall publish the Proposed National List or any proposed amendments to the National List in the Federal Register and seek public comment on such proposals. The Secretary shall include in such Notice any changes to such proposed list or amendments recommended by the Secretary.

(5) Publication of National List. After evaluating all comments received concerning the Proposed National List or Proposed Amendments to the National List, the Secretary shall publish the final National list in the Federal Register, along with a discussion of comments received.

(d) Procedure for Establishing National List.

(1) In General. The National List established by the Secretary shall be based upon a proposed national list or proposed amendments to the National List developed by the National Organic Standards Board.

(2) No Additions. The Secretary may not include exemptions for the use of specific synthetic substances in the National List other than those exemptions contained in the Proposed National List or Proposed Amendments to the National List.

(3) Prohibited Substances. In no instance shall the National List include any substance, the presence of which in food has been prohibited by Federal regulatory action.

(4) Notice and Comment. Before establishing the National List or before making any amendments to the National List, the Secretary shall publish the Proposed National List or any proposed amendments to the National List in the Federal Register and seek public comment on such proposals. The Secretary shall include in such Notice any changes to such proposed list or amendments recommended by the Secretary.

(5) Publication of National List. After evaluating all comments received concerning the Proposed National List or Proposed Amendments to the National List, the Secretary shall publish the final National list in the Federal Register, along with a discussion of comments received.

(6) Expedited Petitions for Commercially Unavailable Organic Agricultural Products Constituting Less Than 5 Percent of an Organic Processed Product. The Secretary may develop emergency procedures for designating agricultural products that are commercially unavailable in organic form for placement on the National List for a period of time not to exceed 12 months.

6510 (a) (1) Handling

(a) In General. For a handling operation to be certified under this chapter, each person on such handling operation shall not, with respect to any agricultural product covered by this chapter

(1) add any synthetic ingredient during the processing or any post harvest handling of the product;

(a) In General. For a handling operation to be certified under this chapter, each person on such handling operation shall not, with respect to any agricultural product covered by this chapter

(1) add any synthetic ingredient not appearing on the National List during the processing or any post harvest handling of the product;


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