What is the issue?
A June 2005 court ruling found three inconsistencies between the organic statute (the Organic Foods Production Act of 1990) and the United States Department of Agriculture (USDA) organic rules (the National Organic Program regulations). As a result, the court sent the entire matter back to USDA and Congress to review.
What parts of the National Organic Program would the court's ruling affect?
The June 2005 court ruling impacted three parts of the federal regulations for organic production:
- First, it effectively blocked the common use of harmless substances like baking powder, a type of pectin, carbon dioxide, vitamins and minerals, etc., the so-called "allowed synthetics" in processed food products bearing USDA's organic seal.
- Second, it required the rules relied upon by small dairy farms transitioning to organic management practices be revised, with the unintended result of making those wishing to become organic dairy farmers to incur significantly higher costs.
- Third, it disallowed the procedure implemented by the Secretary's organic certifying agents for recognizing the commercial unavailability of organic agricultural products.
Can USDA simply fix the rules?
No. The court found that some questions were only for Congress to answer. OTA continues to support strict organic standards, and this is why OTA is supporting actions by Congress that will uphold the standards as we know them.
Is this situation unusual?
No. Whenever there is a new federal regulatory program, especially one as complex as the organic program, it is quite common to have a period of years where the kinks have to be worked out. All statutes have to be updated, and the organic business community has developed far beyond what Congress originally envisioned when the Organic Foods Production Act was passed in 1990.
Is there an immediate impact on consumers due to the court ruling?
No. There is no immediate effect on consumers because the court left the existing rules in place for two years to let Congress and USDA address the discrepancies. Businesses, however, need Congress to act quickly so that they can continue to source organic ingredients for their products. Businesses are beginning to contract with farmers for organic ingredients that would be used in products after the court-determined deadline, and clarification is needed now to avoid disruption to the supply chain.
Did the court set stricter organic standards?
No. Existing organic products can remain on the shelves, and the existing standards remain in place while Congress addresses the inconsistencies the court found. All organic products that bear the "USDA Organic" seal must continue to contain at least 95 percent organic content, and meet or exceed all the other requirements in the regulations.
Did the court alter the definition of materials allowed for organic production or how they are approved? Will "USDA bureaucrats and industry lobbyists have near total control over what can go into organic foods and products," rather than allowing input from consumers and businesses?
No. There will be no change in how materials are defined or how the National Organic Standards Board, a citizen's advisory board to the USDA, reviews and approves materials for use in organic production. The existing standards allow specific materials that are essential to making numerous organic products. These are non-agricultural materials that are necessary in certain production and processing practices that have been used in producing foods for decades. These are essential materials, including a limited number (36) of strictly reviewed materials the regulations define as synthetic. The court simply concluded that Congress had failed to clearly authorize their use in products containing 95 percent organic content. The claim made by some consumer groups implying that this action would approve a new broad list of synthetic ingredients and processing aids are inaccurate and misleading.
Did the court ruling alter dairy product standards?
No. The court decision did not alter the standards for organic dairy products. The court clarified the terms on which animals are transitioned from conventional to organic management. Organic milk products always have, and will continue to come from organic livestock, which is fed organic feed, has access to the outdoors, and does not receive antibiotics or added growth hormones.
What is OTA doing?
OTA is working with Congress and USDA to address the issues the court ruling raised. OTA believes that it is better for consumers and farmers if Congress eliminates any confusion by updating the Organic Foods Production Act. OTA supports the National Organic Program, and the standards that were developed in over a decade of open public participation by consumers, farmers, environmental groups, and businesses. The existing standards were developed over more than a decade of public debate and discussion, received more than 300,000 public comments, and were reviewed and approved by Congress prior to implementation. OTA believes that Congress wants to help America's farmers succeed and wants organic products to be available to all consumers.
Is this a "sneak attack" to "weaken" or "seriously degrade" organic standards, orchestrated by big corporations and the Bush administration?
No. Organic Trade Association supports the existing standards, which would have to change unless Congress acts to restore the regulations. Congress has agreed to study the issue, and OTA supports any efforts that would restore, not weaken, the organic standards that were implemented in October 2002.
Is OTA advocating for more synthetics in organic food?
No. OTA is not proposing any change in the way synthetic materials are petitioned, reviewed, and approved or rejected. OTA strongly supports the existing role of the National Organic Standards Board as the gatekeeper on all materials decisions. We propose to keep the the system that is currently in place which is that all synthetic ingredients and processing aids must be the subject of a petition to the NOSB, and then subject to review by the NOSB and a technical advisory panel. If the technical review satisfies the NOSB, the NOSB may then vote to recommend the material for approval by the Secretary. If the material is recommended by the NOSB for placement on the National List, and the Secretary agrees, the material is then posted in the federal register for public comment.
In addition to the stringent review process, OTA supports the existing statutory requirement that all National List materials be reviewed by the NOSB every 5 years after they are placed on the National List. The review process is designed to allow the NOSB to reconsider whether the material is still needed by the organic industry, or if new information is available about the material that would alter the NOSB's opinion about the material. There are currently 36 synthetic ingredients and processing aids allowed for use in products that carry the USDA's Organic Seal. Each has been reviewed and approved by the NOSB and placed on the National List by the USDA after public comment. The National List is based on a strong public/private partnership and OTA believes only through this partnership should materials be added or deleted from the National List.