Natural Foods Merchandiser

Court clarifies synthetics ban

The United States Court of Appeals for the First Circuit last week clarified its stance on the use of synthetic ingredients in foods with less than 95 percent organic ingredients.

On March 30, the appeals court issued an "errata sheet" stating, "The ban on the addition of synthetic substance in handling applies only to those products labeled 'organic' or '100 percent organic.'" To be labeled organic, a product must contain at least 95 percent organic ingredients. The errata sheet continued, "The statute does not prohibit the addition of synthetic substances to foods labeled 'made with organic [ingredients],' provided the other requirements of the Act are met. The Organic Trade Association, in a memo, said, "The ruling affirms the National Organic Program rule's treatment of synthetics in 'made with organic' products, an outcome OTA has supported.

During a pair of meetings at Natural Products Expo West last month, OTA Executive Director Katherine DiMatteo told attendees that it was unclear whether the recent ruling in Harvey v. Veneman affected all organic products, and whether it applied to products containing the 'made with organic' label. To qualify for that label, products must contain at least 70 percent organic ingredients.

DiMatteo said the clarification is a welcome step toward resolution of the issue. "It's a good thing for us to have heard back from the court and for them to clarify what their understanding of the original appeal was and ? which of the categories the ban on synthetics covers. It helps keep this process moving forward."

Arthur Harvey, the plaintiff in the lawsuit that threatens to change the definition of organic, requested in mid-March that the court issue a clarification on the synthetics ruling.

Next, the court will meet with Harvey and the U.S. Department of Agriculture to discuss the timeline and the process for making the changes dictated by the appeals court last January. "I'm sure for the people who are going to be affected by this, there is no reasonable timeline," DiMatteo said. "In terms of formulations, changing ingredients, changing suppliers, losing business, changing labels ? if they give them 18 months or 24 months—only someone on the outside would think it's reasonable. It's just going to be whatever it's going to be, but at least people will know. ? Right now they're either not making decisions or second-guessing what's going to be.

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