Statement on Harvey Lawsuit
January 15, 2007
In 1990, Congress adopted the Organic Foods Production Act (OFPA) as part of the 1990 Farm Bill. Its purpose was to establish U.S. national standards for the production and handling of foods labeled as “organic.” Although private and state agencies certified organic practices, there had been no national requirement for certification and thus no guarantee that “organic” meant the same thing from state to state, or even locally from certifier to certifier. Both consumers and producers of organic products sought national standards to clear up this confusion in the marketplace and to protect against mislabeling or fraud.
OFPA authorized the formation of a National Organic Program (NOP) to establish organic standards and to require and oversee mandatory certification of organic production. The U.S. Department of Agriculture (USDA) oversees NOP.
In addition, OFPA created the National Organic Standards Board (NOSB) to advise the Secretary of Agriculture in setting the standards on which USDA’s National Organic Program is based. After considering the recommendations of NOSB, the Secretary has final authority in determining the regulations. NOSB is authorized to convene technical advisory panels to advise which materials should be included on a national list of materials allowed and prohibited for use in organic production. NOSB is made up of 15 persons appointed to represent all organic sectors and interests, including producers, handlers, retailers, environmentalists, consumers, scientists and certifying agents.
Developed over more than a decade of public input and discussion, U.S. national organic standards were published by USDA in a final rule in December 2000 and implemented in October 2002. These stringent standards put in place a system to certify that specific practices are used to produce and process organic agricultural ingredients used for food and non-food uses.
Those strict standards are still in place. Every business that wants to sell foods, beverages and farm products as organic, regardless of size or ownership structure, must meet the same stringent national organic standards.
Since implementation, the standards have been under scrutiny several times by the court system. As the result of a first lawsuit, a court ruling in June 2005 declared there were technical inconsistencies between the Organic Foods Production Act (OFPA), passed as part of the 1990 U.S. Farm Bill, and the National Organic Program standards, implemented in 2002.
This raised some issues that only the U.S. Congress could answer. For instance, without action by Congress, the ruling would have prevented the use of 38 synthetic materials (such baking powder, pectin and Vitamin C) in post-harvest handling and processing that had previously been approved by the National Organic Standards Board (NOSB) for products in the “Organic” category (containing at least 95 percent organically produced ingredients). In November 2005, at the prompting of the Organic Trade Association (OTA), the U.S. Congress took action to help restore this and other key provisions of U.S. national organic standards by amending OFPA.
Congress’ action effectively retained the national organic regulations implemented in October 2002. Under these standards, no new synthetic substances, including ingredients, may be allowed in organic production without the review and approval of NOSB. Under this process, citizens may also petition for substances to be removed from the National List. In addition, there is a sunset provision, which, by law, automatically removes approved synthetic substances from the National List every five years unless NOSB has reviewed the exemption and the Secretary of Agriculture has renewed an exemption or prohibition.
During 2006, the same plaintiff brought a second lawsuit centering on synthetic processing aids and “food contact substances.” The U.S. District Court, District of Maine, has since dismissed this legal action in its entirety.
As a result, the organic community continues to use the systems put in place in the regulations to petition for materials review through NOSB and to use the sunset provisions as better methods and materials are developed. As OTA points out, the regulations were not meant to be static, but were designed to allow systematic improvement with open, transparent processes. OTA continues to support NOSB, and the systems in place in the regulations regarding materials review and evaluation.