What are the implications of the Ag Appropriations bill on organic labeling?

From the Organic Consumers Association
11/7/2005

It took 10 years for 38 synthetic substances to make their way into products labeled “USDA Organic”, when the Ag Approps amendments kick in, that number could leap to over 500 with the stroke of the Secretary’s pen.

Below are the parts of the Organic Food Production Act relating to organic labeling with the new amendments in bold.

It is products that currently are labeled “USDA Organic” that are affected. Under USDA National Organic Program regulations (below, after the code), these products were only required to contain 95% organic ingredients and they could contain certain synthetic ingredients on the National List. In Harvey, a recent 1st Circuit case, the court ruled that these regulations would have to be changed to bring them into compliance with the OFPA which specifically forbade anyone to “add any synthetic ingredient during the processing or any postharvest handling of the product” and, for the handling of organic agricultural products, required each National List item be one that is “non-synthetic but is not organically produced.”

Now, with the new Ag Approps changes to the OFPA, the law forbids one to “add any synthetic ingredient NOT APPEARING ON THE NATIONAL LIST during the processing or any postharvest handling of the product” and it strikes the requirement for the handling of organic agricultural products that a National List item be one that is “non-synthetic but is not organically produced.” In this respect, the changes restore the pre-Harvey status quo (the 38 synthetic ingredients).

However, there is one way in which the new OFPA amendments on synthetics go far beyond “pre-Harvey”:

(1) They radically alter the way synthetic ingredients are added to the List.

For the first time, the Secretary will have the power to expedite petitions for access to the list of substances that are commercially unavailable in organic form. Right now there are 38 synthetic substances on the National List that have been carefully reviewed and approved by the National Organic Standards Board over the past ten years. Eight more synthetic substances have been reviewed and approved by the NOSB and are awaiting USDA authority to be placed on the National List. The industry has requested that 517 more synthetic substances be approved. In all likelihood, this new power granted to the Secretary will be the opening of the floodgate to these hundreds of synthetic ingredients being allowed in products labeled “USDA Organic.”

7 U.S.C.A. § 6510(a)(1)

(a) In general
For a handling operation to be certified under this chapter, each person on such handling operation shall not, with respect to any agricultural product covered by this chapter--
(1) add any synthetic ingredient NOT APPEARING ON THE NATIONAL LIST during the processing or any postharvest handling of the product;

7 U.S.C.A. § 6517(c)(1)(B)

(c) Guidelines for prohibitions or exemptions

(1) Exemption for prohibited substances

The National List may provide for the use of substances in an organic farming or handling operation that are otherwise prohibited under this chapter only if--
(A) the Secretary determines, in consultation with the Secretary of Health and Human Services and the Administrator of the Environmental Protection Agency, that the use of such substances IN ORGANIC PRODUCTION AND HANDLING OPERATIONS--
(i) would not be harmful to human health or the environment;
(ii) is necessary to the production or handling of the agricultural product because of the unavailability of wholly natural substitute products; and
(iii) is consistent with organic farming and handling;
(B) the substance--
(i) is used in production and contains an active synthetic ingredient in the following categories: copper and sulfur compounds; toxins derived from bacteria; pheromones, soaps, horticultural oils, fish emulsions, treated seed, vitamins and minerals; livestock parasiticides and medicines and production aids including netting, tree wraps and seals, insect traps, sticky barriers, row covers, and equipment cleansers; OR
(ii) is used in production and contains synthetic inert ingredients that are not classified by the Administrator of the Environmental Protection Agency as inerts of toxicological concern; AND
STRIKE>>(iii) is used in handling and is non-synthetic but is not organically produced; and<<STRIKE
(C) the specific exemption is developed using the procedures described in subsection (d) of this section.

* * *
(d) Procedure for establishing National List

(1) In general

The National List established by the Secretary shall be based upon a proposed national list or proposed amendments to the National List developed by the National Organic Standards Board.

(2) No additions

The Secretary may not include exemptions for the use of specific synthetic substances in the National List other than those exemptions contained in the Proposed National List or Proposed Amendments to the National List.

(3) Prohibited substances

In no instance shall the National List include any substance, the presence of which in food has been prohibited by Federal regulatory action.

(4) Notice and comment

Before establishing the National List or before making any amendments to the National List, the Secretary shall publish the Proposed National List or any Proposed Amendments to the National List in the Federal Register and seek public comment on such proposals. The Secretary shall include in such Notice any changes to such proposed list or amendments recommended by the Secretary.

(5) Publication of National List

After evaluating all comments received concerning the Proposed National List or Proposed Amendments to the National List, the Secretary shall publish the final National List in the Federal Register, along with a discussion of comments received.

(6) EXPEDITED PETITIONS FOR COMMERCIALLY UNAVAILABLE ORGANIC AGRICULTURAL PRODUCTS CONSTITUTING LESS THAN 5 PERCENT OF AN ORGANIC PROCESSED PRODUCT

THE SECRETARY MAY DEVELOP EMERGENCY PROCEDURES FOR DESIGNATING AGRICULTURAL PRODUCTS THAT ARE COMMERCIALLY UNAVAILABLE IN ORGANIC FORM FOR PLACEMENT ON THE NATIONAL LIST FOR A PERIOD OF TIME NOT TO EXCEED 12 MONTHS.

7 CFR § 205.600(b)

(b) In addition to the criteria set forth in the Act, any synthetic substance used as a processing aid or adjuvant will be evaluated against the following criteria:
(1) The substance cannot be produced from a natural source and there are no organic substitutes;
(2) The substance's manufacture, use, and disposal do not have adverse effects on the environment and are done in a manner compatible with organic handling;
(3) The nutritional quality of the food is maintained when the substance is used, and the substance, itself, or its breakdown products do not have an adverse effect on human health as defined by applicable Federal regulations;
(4) The substance's primary use is not as a preservative or to recreate or improve flavors, colors, textures, or nutritive value lost during processing, except where the replacement of nutrients is required by law;
(5) The substance is listed as generally recognized as safe (GRAS) by Food and Drug Administration (FDA) when used in accordance with FDA's good manufacturing practices (GMP) and contains no residues of heavy metals or other contaminants in excess of tolerances set by FDA; and
(6) The substance is essential for the handling of organically produced agricultural products.

7 CFR § 205.605(b)

(b) Synthetics allowed:
Alginates.
Ammonium bicarbonate--for use only as a leavening agent.
Ammonium carbonate--for use only as a leavening agent.
Ascorbic acid.
Calcium citrate.
Calcium hydroxide.
Calcium phosphates (monobasic, dibasic, and tribasic).
Carbon dioxide.
Cellulose--for use in regenerative casings, as an anti-caking agent (non-chlorine bleached) and filtering aid.
Chlorine materials--disinfecting and sanitizing food contact surfaces, Except, That, residual chlorine levels in the water shall not exceed the maximum residual disinfectant limit under the Safe Drinking Water Act (Calcium hypochlorite; Chlorine dioxide; and Sodium hypochlorite).
Ethylene--allowed for postharvest ripening of tropical fruit and degreening of citrus.
Ferrous sulfate--for iron enrichment or fortification of foods when required by regulation or recommended (independent organization).
Glycerides (mono and di)--for use only in drum drying of food.
Glycerin--produced by hydrolysis of fats and oils.
Hydrogen peroxide.
Lecithin--bleached.
Magnesium carbonate--for use only in agricultural products labeled "made with organic (specified ingredients or food group(s))," prohibited in agricultural products labeled "organic".
Magnesium chloride--derived from sea water.
Magnesium stearate--for use only in agricultural products labeled "made with organic (specified ingredients or food group(s))," prohibited in agricultural products labeled "organic".
Nutrient vitamins and minerals, in accordance with 21 CFR 104.20, Nutritional Quality Guidelines For Foods.
Ozone.
Pectin (low-methoxy).
Phosphoric acid--cleaning of food-contact surfaces and equipment only.
Potassium acid tartrate.
Potassium tartrate made from tartaric acid.
Potassium carbonate.
Potassium citrate.
Potassium hydroxide--prohibited for use in lye peeling of fruits and vegetables except when used for peeling peaches during the Individually Quick Frozen (IQF) production process.
Potassium iodide--for use only in agricultural products labeled "made with organic (specified ingredients or food group(s))," prohibited in agricultural products labeled "organic".
Potassium phosphate--for use only in agricultural products labeled "made with organic (specific ingredients or food group(s))," prohibited in agricultural products labeled "organic".
Silicon dioxide.
Sodium citrate.
Sodium hydroxide--prohibited for use in lye peeling of fruits and vegetables.
Sodium phosphates--for use only in dairy foods.
Sulfur dioxide--for use only in wine labeled "made with organic grapes," Provided, That, total sulfite concentration does not exceed 100 ppm.
Tartaric acid.
Tocopherols--derived from vegetable oil when rosemary extracts are not a suitable alternative.
Xanthan gum.