Retailers may soon start noticing fewer certified organic products available to them. In January, the U.S. Court of Appeals for the First Circuit ruled that several provisions of the National Organic Program are inconsistent with the Organic Food Production Act of 1990, and must be rewritten or clarified to maintain the integrity and intent of the OFPA, sometimes called the organic rule.

Until now, the NOP has allowed 38 synthetic ingredients, from alginates to xanthan gum, to be used in processing and post-harvest handling, even though OFPA prohibits synthetic ingredients in processed organic foods. The appeals court ruled that most of these ingredients would no longer be allowed.

Dave DeCou, executive director of the Organic Materials Review Institute, noted that the OFPA was written when fewer organic processed products existed. "It's going to probably cause some manufacturers to move out of the organic labeling category into the made with organic ingredients category. My guess is that many of them are not going to be able to change their ingredients. I don't think they've been using these on a casual basis."

The ruling came after Arthur Harvey, an organic blueberry farmer in Canton, Maine, and an organics inspector for the U.S. Department of Agriculture, filed an October 2003 lawsuit against Ann Veneman, then U.S. secretary of agriculture. Harvey claimed that seven NOP provisions violated the OFPA, which became effective in October 2002. The suit appealed a district court's decision that none of Harvey's nine initial allegations had merit.

This time around, the appeals court sided with Harvey on the synthetic ingredients issue and two other points. Harvey took issue with the NOP permitting dairy herds undergoing conversion to organic status to be given feed for the first nine months that is only 80 percent organic. He argued that a phase-in violates OFPA's mandate that organic dairy animals receive organic feed for 12 months before their milk may be labeled organic. In its decision, the three-judge panel wrote, "Nothing in the Act's plain language permits creation of an 'exception' permitting a more lenient phased conversion process for entire dairy herds."

Harvey doesn't believe the dairy herd ruling will change the industry greatly. "Dairy farmers who wanted to convert to organic found it prohibitively expensive. I acknowledge that that is quite a strong barrier," he said. "On the other hand, they're getting $21 a hundred [weight] versus the maybe $12 for conventional milk. It's an investment." Besides, he said, the two biggest organic milk producers in the country are not accepting new farmers. "They're oversubscribed right now. It's not as though they're really hurting for more organic dairy producers. I think the effect of this ruling will be to slightly increase the cost of organic milk, but it will also increase the purity. That's a reasonable bargain for the consumer."

The court also agreed with Harvey that permitting nonorganic agricultural ingredients when organic versions were not commercially available, without requiring USDA to review each ingredient on a case-by-case basis, could be interpreted as a "blanket" exemption. The court ruled that ingredients such as cornstarch and pectin should have individual reviews in order to be used in processed foods. "They sent it back to the trial court to clarify the point," said William J. Friedman, an attorney with DLA Piper Rudnick Gray Cary in Washington, D.C. "Look, they are allowed to have a 'commercially available' provision but it can't be anytime they want. There has to be a little more contour to it."

In a news release, the Organic Trade Association noted that the USDA has 45 days to appeal the ruling to the U.S. Supreme Court. Otherwise, the circuit court will order the USDA to issue new regulations.

"It's important to keep in mind that we do have time," said Jim Riddle, chairman of the National Organic Standards Board, which reports to the USDA. "This is a deliberative process. It will involve new rule-writing and possibly new legislation." He emphasized the need for collaborative discussion in the process. "There's a possibility it could cause confusion in the marketplace, and I think we need to be thoughtful about how we handle it in the short term and in the long term — to be inclusive in the discussions and to really consider a wide range of options that really have the support of farmers, consumers and processors."

Friedman said the USDA may also ask the district court to allow a grace period for manufacturers and retailers to convert to the new standards, but that it probably would not be a protracted amount of time. Friedman emphasized that more details must be ironed out before any new regulations take effect. "This ruling will not and can not be enforced until it is back in the trial court and the trial court has entered a final judgment consistent with this opinion."

Riddle added that manufacturers and retailers don't need to panic. "All of the products on the shelves are currently certified to the regulation. USDA does not have power for recall or stop sale, and I think the judge will certainly take that into account and not create a huge upheaval in the stream of business."

Natural Foods Merchandiser volume XXVI/number 3/p. 15, 25