Natural Foods Merchandiser

Plot thickens in NOP challenge

The latest legal interpretation of Harvey v. Veneman could force huge changes in the organic industry if 36 synthetic ingredients now used in many organic products are disallowed by the U.S. Department of Agriculture.

The next phase of legal action, expected in late March, may shed light on what degree of change to expect in labeling and formulation of both "organic" and "made with organic" products, said Katherine DiMatteo, executive director of the Organic Trade Association.

"If this goes through in the worst-case scenario, it could devastate the industry," DiMatteo said March 9. "We're asking our members to think about how it would affect them. ? There may be some dramatic changes to the product lines that [retailers] carry."

The U.S. First Circuit Court of Appeals found Jan. 28 that parts of the National Organic Program conflicted with the 1990 Organic Foods Production Act. It called for changes to three NOP provisions, including one that had allowed synthetic ingredients to be used in products labeled "organic."

In early March, the U.S. Department of Justice, acting as the USDA's legal counsel, interpreted the Harvey ruling along the strictest possible lines: that any post-harvest handler of organics may not use any synthetics at all. How much play exists in the rule is now up to the courts, DiMatteo said.

In the worst case, hundreds of products would immediately have to be pulled from shelves. In the best case, only those labeled "100 percent organic" or "organic" (95 percent organic materials) would have to stop using the synthetics.

In either case, the USDA could give manufacturers an unknown grace period to reformulate products or stop labeling them as organic.

At Natural Products Expo West, the OTA will hold two briefings for association members on the ruling. Identical sessions will take place Saturday, March 19, from 9 to 10:30 a.m. and 2 to 3:30 p.m.

"I really hope everyone goes to the briefings at Expo," said Bea James, a member of the NOSB and senior whole health manager at Lunds and Byerly's supermarkets in Minneapolis. "It would be a good opportunity to get your questions answered."

The worst-case scenario would prohibit any synthetics in post-harvest handling of organic food, including carbon dioxide in grain handling, ethylene gas in banana storage, and packaged good ingredients from baking powder to xanthan gum.

Nonorganic ingredients may be substituted for organic ingredients under the current rule if no organic equivalent is commercially available, DiMatteo said, but only five such substances are on the list and adding new ingredients takes at least 18 months.

The original suit was filed by Maine farmer Arthur Harvey against former U.S. Secretary of Agriculture Ann Veneman.

DiMatteo said it was frustrating to see a single private lawsuit creating havoc around the organic standards, which were developed over 10 years with the input of Congress, many legal advisers and more than 300,000 members of the public.

But, she said, she believes that NOP staff are "equally as devastated" as organic industry members about the direction their agency received. "The Department of Justice is justifiably being super-conservative in their legal advice to protect the Secretary of Agriculture and the USDA from further action," DiMatteo said.

"We all have to wait and see what happens next week," James said.

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