Natural Foods Merchandiser

The Legal Lowdown On The Organic Rule

Counselor's Corner

Q: What exactly does organic mean as applied to food?

A: Organic means food produced, processed and labeled in accordance with the National Organic Program rule issued by the U.S. Department of Agriculture on Oct. 21. The NOP is a marketing program, housed within the USDA's Agricultural Marketing Service, which sets marketing standards. These standards require that agricultural products labeled as organic originate from farms or handling operations certified by a state or private agency accredited by the USDA. Organic production and handling requirements address factors such as crop production and livestock management, prohibit certain pesticides and forbid using such methods as ionizing radiation, sewage sludge fertilizing and genetic engineering. For example, organic meat, poultry, eggs and dairy products come from animals that are given no antibiotics or growth hormones.

Q: How did the NOP rule come about?

A: A decade ago there were no uniform national organic standards. But in 1990, the Farm Bill included the Organic Foods Production Act, which required USDA to develop national standards for organically produced agriculture products. As part of the notice and comment rulemaking process, USDA published a proposed rule in the Federal Register in December 1997, and solicited comments. Many thought the proposed rule too lax and grassroots campaigns, with slogans like "Don't grow my organic broccoli in municipal sludge," flourished. The USDA received almost 280,000 public comments—most of them negative—from marketers, consumers, ranchers, nutritionists and retailers. In response, AMS created a new proposed rule, published in March 2000. After considering almost 40,000 comments, AMS refined the proposal into a final rule that was published in December 1999 and takes effect on Oct. 21.

Q: Which types of organic products may make organic claims?

A: The four categories of organic products must meet different claim requirements. For example, processed products made with at least 70 percent organic ingredients may use the phrase made with organic ingredients and list up to three of the organic ingredients or food groups on the principal display panel. Hence, soup made with at least 70 percent organic ingredients and only organic vegetables may be labeled either "soup made with organic peas, potatoes and carrots," or "soup made with organic vegetables." In addition, products labeled "made with organic ingredients" cannot be produced using excluded methods such as ionizing radiation.

Q: Which products are eligible to use the organic seal? Must organic marketers use the USDA seal?

A: All 100 percent organic products, or products with at least 95 percent organic ingredients, are eligible to use the seal. Using the USDA Organic seal is voluntary. It may be used in advertisements and on packaging. A smaller version of the seal is available for individual vegetables and fruits, and may also be placed on overhead display placards. To help organic handlers develop new packaging, several electronic versions of the seal are available at the USDA Web site: www.ams.usda.gov/nop/nop2000/nop2/sealuse_notice.htm.

Q: What if only some of my ingredients are organic? What can I say on the label?

A: Products with less than 70 percent organic ingredients may list specific organically produced ingredients on the package's side panel, but may not make any organic claims on the package front, also called the principal display panel.

Q: Are there any exemptions from the new organic regulations?

A: Yes. Farms and handling operations with less than $5,000 in gross agricultural income from organic sales are exempt from certification and organic plan preparation. Such producers, however, must still comply with all other national organic standards and may label their products as organic, in accordance with USDA requirements.

Q: Can a dietary supplement be labeled and advertised as "organic"?

A: Yes. The scope of the NOP rule does include dietary supplements, according to the May 2 AMS document, Policy Statement on National Organic Program Scope. Since supplements contain agricultural products, producers and handlers of such products are eligible to seek certification under the NOP. As for the finished product, if less than 70 percent of the ingredients are organic, follow the labeling requirements in the last row of the chart below.

Q: Will the USDA issue a specific guidance document on organic supplements?

A: Perhaps. The National Organic Standards Board provides recommendations for organic mushrooms, apiculture (beekeeping) and greenhouse production. However, such recommendations do not have the force of law. The Policy Statement concludes: "After October 21, 2002, as needed, the NOP may engage in additional rulemaking to clarify the application of the existing regulations to specific products, classes of products or production systems." In the meantime, the USDA encourages producers, handlers, accredited certifying agents and agent applicants to send their questions regarding the NOP by e-mail to [email protected]

Q: May an organic food also be a genetically modified food?

A: No. Both the USDA and the FDA make it clear that to be organic, a food may not be bio-engineered or genetically modified.

Q: Is organic the same as natural? What other claims can be made about food products besides organic?

A: No. Natural does not mean organic. Moreover, the USDA categorically states the organic seal does not guarantee safety or nutritional value. Labels and advertisements may contain other true, substantiated and nondeceptive claims such as "free range," "contains no growth hormones" or "sustainably harvested."

Q: What are the enforcement mechanisms and sanctions for noncompliance with the NOP rule? What about retailer liability?

A: The rule permits the USDA or certifying agent to conduct unannounced inspections at any time to enforce regulations. People who sell or label a product "organic" knowing it does not meet USDA standards can be fined up to $10,000 for each violation. (See www.ams.usda.gov/nop/facts/labeling.htm for details.)

However, no regulation suggests inadvertent offerings of a mislabeled organic product will be punished. Indeed, the USDA explicitly states there will be no enforcement action taken against retailers who mislabel organic products. This information is provided in a useful document called "Frequently Asked Questions" at www.ams.usda.gov/nop/nop2000/nop2/FAQ.htm.

Susan D. Brienza, Esq., is an attorney in the Denver office of the Washington, D.C.-based law firm Patton Boggs LLP. She specializes in regulatory compliance, food and drug law (including DSHEA) and FTC law. E-mail your questions to [email protected]

This column is not meant, and should not be construed, as a legal opinion or legal advice, but rather is intended to provide general principles and some examples as to various aspects of FDA, FTC and USDA law.

Natural Foods Merchandiser volume XXIII/number 10/p. 44, 46

Labeling Packaged Products as "Organic" Under NOP Rule

If you want to claim:

Your product:

Your label must:

Your label may show:

"100 Percent Organic"
(or similar statement)

Note: If requirements are met, this claim and the USDA Organic seal may also be used in advertisements

Must contain 100 percent organically produced ingredients, not counting added water and salt.

Show an ingredient statement when the product consists of more than one ingredient.

Show below the name and address of the handler (bottler, distributor, importer, manufacturer, packer, processor, etc.) of the finished product, the statement: "Certified organic by ..." or similar phrase, followed by the full name of the certifying agent. Certifying agent seals may not be used to satisfy this requirement. (IP)

The term "100 percent organic" to modify the product name. (PDP/IP/OP)

The term "organic" to identify the organic ingredients.1 Water and salt included as ingredients must not be identified as organic. (IS)

The USDA Organic seal and/or certifying agent seal(s). (PDP/OP)

The certifying agent business/Internet address or telephone number. (IP)

"Organic"
(or similar statement)
Note: If requirements are met, this claim and the USDA Organic seal may also be used in advertisements

Must contain at least 95 percent organic ingredients, not counting added water and salt.
Must not contain added sulfites.
May contain up to 5 percent of nonorganically produced agricultural ingredients which are not commercially available in organic form, and/or other substances allowed by 7 CFR § 205.605.

Show an ingredient statement.

List the organic ingredients as "organic" when other organic labeling is shown.1 Water and salt included as ingredients must not be identified as organic. (IS)

Show below the name and address of the handler (bottler, distributor, importer, manufacturer, packer, processor etc.) of the finished product the statement: "Certified organic by . . ." or similar phrase, followed by the full name of the certifying agent. Certifying agent seals may not be used to satisfy this requirement. (IP)

The term "organic" to modify the product name. (PDP/IP/OP)

"X percent organic" or "X percent organic ingredients." (PDP/IP/OP)

The USDA Organic seal and/or certifying agent seal(s). (PEP/OP)

The certifying agent business/Internet address or telephone number. (IP)

"Made with Organic Ingredients"
(or similar statement)

Must contain at least 70 percent organic ingredients, not counting added water and salt.

Must not contain added sulfites; except that wine may contian added sulfur dioxide in accordance with 7 CFR § 205.605.

May contain up to 30 percent of nonorganically produced agriculture ingredients and/or other substances, including yeast, allowed by 7 CFR § 205.605.

Show an ingredient statement.

List the organic ingredients as "organic" when other organic labeling is shown.1 Water and salt included as ingredients must not be identified as organic. (IS)

Show below the name and address of the handler (bottler, distributor, importer, manufacturer, packer, processor etc.) of the finished product, the statement: "Certified organic by . . ." or similar phrase followed by the full name of the certifying agent. Certifying agent seals may not be used to satisfy this requirement. (IP)

The term "Made with organic . . . [specified ingredients or food groups]." (PDP/IP/OP)

"X percent organic" or "X percent organic ingredients." (PDP/IP/OP)

The certifying agent seal(s). (PDP/OP)

The certifying agent business/Internet address or telephone number. (IP)

Some organic ingredients

May contain less than 70 percent organic ingredients, not counting added water and salt.

May contain over 30 percent of nonorganically produced agricultural ingredients and/or other substances without being limited to those in 7 CFR § 205.605.

Show an ingredient statement when the word organic is used.

Show "X percent organic ingredients" when organically produced ingredients are identified in the ingredient statement. (IP)

The organic status of ingredients in the ingredients statement.1

Water and salt included as ingredients must not be identified as organic. (IS)

These Organic Standard requirements do not preempt FDA, USDA, FSIS or Bureau of Alcohol, Tobacco and Firearms labeling regulations and label approval requirements.

KEY:

PDPPrincipal display panel. The part of a label most likely to be displayed, presented, shown or examined under customary conditions of sale display.

IPInformation panel. The part of a packaged product label immediately contiguous to, and to the right of the principal display panel as observed by a person facing the principal display panel, unless another section of the label is designated as the information panel because of package size or other package attributes (e.g., irregular shape with one usable surface).

ISIngredients statement. The list of ingredients contained in a product shown in their common and usual names in descending order of predominance.

OPOther panel. Any panel other than the principal display panel, information panel or ingredients statement.

1To identify an ingredient as organically produced in the ingredients statement, use the word "organic" in conjunction with the name of the ingredient, or an asterisk or other reference mark which is defined below the ingredient statement.


Natural Foods Merchandiser volume XXIII/number 10/p. 44

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