The Organic Consumers Fund (OCF) submits these comments in strong support of the Recommendation set forth in the Discussion Document, dated March 13, 2009, prepared by the Certification, Accreditation and Compliance Committee, entitled Solving the Problem of Mislabeled Organic Cosmetics & Personal Care Products (CACC Discussion Document). CACC indicated in the Discussion Document that it is presenting this topic for public discussion with the intention of developing a CAC Recommendation for the NOSB Public Meeting in Fall 2009. Although the NOSB is not taking up this Recommendation at this Spring meeting, OCF urges the CACC to finalize the Recommendation for the Fall Meeting and urges the NOSB to adopt it, with certain modifications as discussed below, at that time.
As the CACC Discussion Document correctly points out, an ever-increasing stream of cosmetic/personal care products making organic claims continues to flow in to the market place. Currently USDA takes the position that, while such products meeting National Organic Program standards can voluntarily advertise such compliance, and display the USDA seal if they meet the NOP requirements for an outright Organic claim, the NOP regulations are not mandatory for cosmetic/personal care products. Accordingly, producers of cosmetic/personal care products not meeting NOP standards can label and market their products as Organic, based on a variety or private voluntary industry standards, or no standards, without being held in violation of the NOP rules.
As a result, there are numerous products currently being labeled Organic and sold in the U.S. which consumers would not regard as being Organic, if they were aware of the actual composition of the products, and which cannot be regarded as Organic by any reasonable standard. Organic consumers expect that the main cleansing and moisturizing ingredients in personal care labeled outright as Organic are made from organic, as distinct from conventional agricultural or petrochemical material, and like the organic food they consume, expect organic personal care to be free of synthetic ingredients like the organic food they consume. In order to achieve the NOPs goal of protecting consumers, USDA should change its interpretation of its own authority, and its position, in accordance with the Recommendation in the CACC Discussion Document.
A. OCFs Interest and Involvement
OCF is a nonprofit legislative and electoral advocacy organization working for health, justice and sustainability. It is the nations only organization devoted exclusively to promoting and representing the views of U.S. consumers who want to purchase organic products and products made through socially responsible means. Among the tens of thousands of members, subscribers and volunteers that have supported the work of OCF, are consumers, farmers, environmentalists and businesses engaged in the natural and organic foods industry.
For approximately the last five years, in conjunction with the Organic Consumers Associations Coming Clean Campaign, OCF has been working to combat fraudulent and misleading labeling and advertising of cosmetic/personal care products as Organic. OCFs positionsimilar to that of the CACCis that the NOP standards for labeling food products as Organic or Made with Organic ingredients should be applied to cosmetic and personal care products. Insofar as the USDA NOP makes additional allowances for processes such as hydrogenation and sulfation of ingredients, or allows any synthetic preservatives, these should be restricted entirely to the 70-percent-or-more-organic made with Organic category of personal care, much like added sulfites are restricted to “made with Organic wine.
In March 2008, the Organic Consumers Association released a study showing that some personal care products labeled as Organic actually contain the carcinogen 1,4 Dioxane. At that time, OCA solicited comments from consumers, hundreds of whom wrote to OCA complaining about being misled by the labeling as Organic of products that contain petrochemical compounds or synthetic preservatives, and/or the principal active ingredients of which are derived from conventional rather than organic materials. Also in the spring of 2008, OCA along with the company All One God Faith d/b/a Dr. Bronners Magic Soaps, released a survey of consumers demonstrating that they were being misled by current labeling practices, and issued letters to a number of manufacturers of personal care products being labeled Organic, demanding that these labeling practices be discontinued.
B. Evolution of USDAs Position
During the discussion of the final regulations implementing the OFPA at the end of the year 2000, some commenters asked that the NOP include in the final rule certification standards for cosmetics, body care products and dietary supplements. USDA, National Organic Program, Final Rule, 65 Fed. Reg. 80548, 80557 (Dec. 21, 2000). The USDA concluded, however, that [t]he ultimate labeling of cosmetics, body care products, and dietary supplements, however, is outside the scope of these regulations. Id.
In May 2002, the USDA issued a Policy Statement on National Organic Program Scope. In that May 2002 statement, the USDA took the position that since cosmetics and body care products contain agricultural products the producers and handlers of such products, classes of products and production systems are eligible to seek certification under the NOP. Id.
From that position, which defined the start of the NOP in the marketplace in October of 2002 and based on which a number of companies certified compliant personal care, the USDA then shifted to the position that producers of personal care and cosmetic products could not seek even voluntary participation in the NOP because the USDA lacked regulatory authority to allow even the voluntary program. In an April 2004 Guidance Statement, the USDA stated that the OFPA does not extend to products over which USDA has no regulatory authority, including such products as personal care, health care products, [and] fertilizers. OCA, joined by the Organic Trade Association and producers of personal care products meeting the NOP standards, advocated that USDA reverse this unexpected development. The USDA a few months later did change course and suspended the Guidance Statement, permitting the status quo that had prevailed since the launch of the program in 2002, that qualified personal care may certify and participate in the National Organic Program.
In April 2005, USDA then issued a USDA Response to NOSB Feedback on Issue Statements: Fishmeal, Inerts, Antibiotics and Scope of Authority. In the response, the USDA addressed a recommendation from the NOSB that the USDA consider undertaking a rule-making proceeding if legislation were adopted to allow the regulation of organic personal care products, cosmetics and dietary supplements. The USDA responded that:
If legislation to amend OFPA with respect to personal care products and cosmetics is enacted, the NOP will enter into notice and comment rulemaking to propose standards for the production, handling and labeling of these products. Until such time, these finished products may not display the USDA seal or be represented as NOP-certified. Only the organic agricultural ingredients contained in these products may be represented as certified to NOP standards. These products may be certified to other, private standards.
The USDA, thus, at that point interpreted the scope of its own authority as not even allowing producers of personal care products voluntarily to seek certification of their products under NOP.
Because the allowance for voluntary certification had been in effect since the launch of the NOP based on the May 2002 Policy Statement, and because the OCA and producers of personal care products meeting NOP standards had relied on that May 2002 statement in voluntarily investing substantially in certifying so they could label their products in accordance with NOP, OCA and Dr. Bronners brought suit against USDA to challenge the abandonment of the voluntary program. All One God Faith Inc. v. U.S. Department of Agriculture, Civ. No. 05cv1178 (PLF) (D.D.C., filed June 13, 2005). The USDA then reversed its earlier position as to the voluntary program and, in August 2005, issued a Memorandum to its certifying agents regarding Certification of agricultural products that meet NOP standards. This memo stated that, [b]usinesses that manufacture and distribute such [personal care] products may be certified under the NOP, and such products may be labeled as 100 percent organic, organic or made with organic so long as they meet NOP requirements. Id.
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In April 2008, USDA issued further guidance on application of the NOP to personal care, body care and cosmetic products. This guidance statement re-confirmed the voluntary, non-mandatory nature of the NOP as applied to labeling of cosmetic/personal care products:
If a cosmetic, body care product or personal care product contains or is made up of agricultural ingredients, and can meet the USDA/NOP organic production, handling, processing and labeling standard, it may be eligible to be certified under the NOP regulations.
Id. (emphasis added). At the same time, USDA stated:
Any cosmetic, body care product or personal care product that does not meet the production, handling, processing, labeling, and certification standards described above, may not state, imply or convey in any way that the products is USDA-certified organic or meets the USDA organic standards.
However:
USDA has no authority over the production and labeling of cosmetics, body care products and personal care products that are not made up of agricultural ingredients or do not make any claims to meeting USDA organic standards.
Cosmetics, body care products, and personal care products may be certified to other, private standards and be marketed to those private standards in the United States. These standards might include foreign organics standards, eco-labels, earth friendly, etc. USDAs NOP does not regulate these labels at this time.
Id.
C. Results of USDA Current Posture
As the CACC Discussion Draft correctly notes, as a result of this current USDA posture, Consumers are not assured that organic claims are consistently reviewed and applied to this product class. Manufacturers of cosmetics/personal care products that contain organic ingredients are hindered by a thicket of competing private standards and confusion¦.
Illustrative examples of the current problem, some of which have been the subject of complaints lodged with OCA by consumers, include the following:
¢ The main cleansing ingredient of a leading liquid soap product labeled Pure, Natural & Organic is Sodium Myreth Sulfate, an ingredient made with the petrochemical ethylene oxide, resulting in the inclusion of trace amounts of the carcinogenic substance 1,4 Dioxane. Neither this nor any other cleansing ingredient in the product are actually derived from organic agricultural material, even though natural soaps made from certified organic oils are available and plentiful, and easily enough made under existing USDA NOP regulations.
¢ The main ingredients of a leading line of skin cleansing and hair products labeled Organic are Olefin Sulfonate, a pure petrochemical, and Cocamidopropyl Betaine, a cleansing agent made by combining petrochemical and conventional agricultural compounds, with no organic content.
¢ A famous brand of high-end cosmetics, includes facial cleansers labeled 100% Organic Active Ingredients, certified to a private standard by Ecocert, but contains just 50% organic ingredients with primary ingredients made from conventional rather than organic agricultural material.
¢ The main cleansing and moisturizing ingredients of many brands labeled Organics brand are made from petrochemicals combined with non-organic conventional agricultural material, such as Cocamidopropyl Betaine, Sodium Lauryl Sulfoacetate and Cocamidopropyl Hydrosultaine.
¢ A new private industry standard that has recently been finalized would allow a personal care product to make an outright Organic claim even if the product contains hydrogenated and/or sulfated cleansing ingredients made from conventional, rather than organic agricultural material, and even if such ingredients are preserved with synthetic petrochemicals. Insofar as these processes and preservatives can be entertained, they must be restricted to 70-percent-or-more-organic made with Organic personal care products.
Currently organic consumers, and producers of truthfully labeled organic personal care products, have no remedy under federal law with respect to these practices. They must look to state law remedies and/or efforts to shape alternative private industry standards.
D. CACC Recommendation Should Be Adopted
OCA strongly concurs with the conclusion of the CACC Discussion Draft that the NOSB should take the necessary initial steps to bring this product class into a coordinated existence with organic food products under the NOP, by making the NOP standards mandatory for the labeling of cosmetic/personal care products.
In order to lay the foundation for this step, USDA should revisit its interpretation of its own authority under the Organic Food Production Act. The Act defines the term agricultural product as any agricultural commodity or product, whether raw or processed¦. 7 U.S.C §6502(1). Just as a processed, finished food product that contains multiple ingredients, including processed agricultural ingredients, cannot be labeled Organic except in accordance with the NOP, USDA should determine, once and for all, that its authority under the Act does extend to finished, multi-ingredient cosmetic/personal care products that contain processed agricultural ingredients. Based on such a new and definitive interpretation of the scope of its own authority, USDA could thenas suggested by the CACC in the Discussion Document Recommendationmake compliance with NOP standards mandatory for cosmetic/personal care products that are labeled, marketed or advertised s Organic.
In that regard, if the NOSB does ultimately adopt the CACC Recommendation contained in the Discussion Document, it should issue two crucially important clarifications. First, the NOSB should make clear that use of the term Organic in labeling includes use of that term in the brand names of cosmetic/personal care products. In the preamble to its final regulations implementing the NOP, USDA noted that commenters had suggested that the term organic must not be used as part of a company name if the company does not market organically produced foods. They are concerned that the term in a company name would incorrectly imply that the product, itself, is organically produced. National Organic Program, Final Rule, 65 Fed. Reg. 80548, 80584 (Dec. 21, 2000). USDA stated that we do not know the extent of the problem and declined to incorporate such a prohibition in the regulations at this time. USDA noted that it has authority to take action against misuse of the term, organic and would take action against such misuse of the term on a case by case basis. Id.
USDA now does have more than enough information about the extent of this problem. Much of the labeling of cosmetic/personal care products as Organic takes the form of inclusion of that term in the brand name of products. In the experience of OCA, normal consumers looking for organic products do not, and have no reason to, distinguish between the prominent use of the term Organic to modify a product as part of a brand name on the front label and equally prominent use of that term other than as part of a brand name. For that reason, if the brand name of a product includes the term Organic, that product should be regarded as being sold, labeled or represented as 100 percent organic, organic or made with organic (specified ingredient)¦ for purposes of the NOP rules, 7 C.F.R. §205.102, as the CACC Discussion Document proposes to modify that rule.
Second, if the NOSB adopts the CACC Recommendation in the Discussion Document, the amended rules should make clear that they preempt any inconsistent private standard and/or state law. Given USDAs current indication, in its April 2008 Guidance, that cosmetic/personal care products may be certified to other, private standards and be marketed to those private standards in the United States, it will be important to establish definitively that cosmetic/personal care products cannot any longer be certified or marketed to private standards to the extent those standards are in any way inconsistent with the NOP.
E. Organic Consumers Support Adoption of the Recommendation
Since issuance of the CACC Discussion Document in mid-March, OCF has heard from organic consumers across the U.S. that they strongly support adoption of the Recommendation.
OCF appreciates the opportunity to submit these written comments, and also requests an opportunity for Alexis Baden-Mayer of OCF to testify in person during the May meeting.
Respectfully submitted,
Ronnie Cummins
National Director
Organic Consumers Fund