606 Background - Organic Trade Association
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606 Background




THE ISSUE: Right now, an organic handler may use any nonorganic agricultural ingredient as a minor ingredient in an organic product if the ingredient is not commercially available in organic form.


One of the results of the Harvey vs. Johanns lawsuit is that on June 9, 2005, Judge Hornsby of the U.S. District Court for the District of Maine signed a Consent Final Order and Judgment, ruling that the National Organic Program must individually list all such nonorganic agricultural substances in Section 205.606 of the National List in order for them to be able to be used.  It further ruled that “[t]he new implementing rules shall become effective two years after the date of this order and judgment, after which no non-conforming products may enter the stream of commerce.”  That is, no company can make organic products after June 9, 2007, that have nonorganic agricultural ingredients that are not on the National List.


If you use any nonorganic agricultural ingredients in the 5% of your organically labeled product, and they are not currently specified in section 205.606 of the National List, you must take action now to get them placed in that section of the list.  Before the lawsuit ruling, Section 205.606 allowed a blanket approval of any nonorganic agricultural product, provided there was no commercially available organic version.  The National Organic Program has now been ordered to list each one individually. This is a long process and has to begin right away. You will need to file a petition to the National Organic Standards Board (NOSB) to request that the nonorganic ingredients of agricultural origin you wish to continue using are approved for continued use and placed on the National List.


NOSB will consider a recommendation on how this process will work at its April, 2006 meeting.  While there is no historic record to predict how long it could take to approve nonorganic agricultural ingredients, we know that petitions for synthetic ingredients can take years to be implemented.  While petitions for nonorganic agricultural ingredients could take less time, there are only fourteen months between April, 2006 and June, 2007.  During this time all proposed nonorganic agricultural ingredients must be petitioned, reviewed, and listed in the Federal Register.  The last step itself can take a full year, so companies wishing to use ingredients not expected to become available in organic form, or ingredients that might become commercially unavailable in an organic form, should consider filing a petition for those ingredients for inclusion on the National List immediately, so that NOSB may review them and the process of rulemaking can begin.


Examples include flavorings, essential oils, and similar minor ingredients that you have not been able to find in a commercially available organic form.  Currently there are five substances on that list:  native cornstarch, water extracted gums, kelp, unbleached lecithin, and high-methoxy pectin.  Some of these are being contested through the Sunset process by manufacturers who believe they can supply those products in an organic form.


The question is complicated by the NOSB’s current discussion of how to define “agricultural and nonagricultural ingredients.” Should yeast be on this list? OTA’s position is that any biological organism, no matter how small, that is cultured and harvested should be considered “agricultural” and potentially available as a certified organic product.  This is the case right now with yeast, which is currently listed on 205.605a (allowed nonsynthetic nonagricultural substances). Given the uncertainty, if you are using yeast, bacterial cultures, or enzymes, all currently considered nonagricultural, you should take notice of the Court’s ruling and consider petitioning to include them in Section 205.606.


What should you do? 

1.  Immediately inventory all nonorganic ingredients used in your organic products, and identify any that you consider to be agricultural.

.  Examine all possible organically produced alternatives you have tried, and be prepared to document your efforts to source an acceptable organic version.

.  Fill out the OTA Members’ Survey on Nonorganic Agricultural Ingredients

4.  Contact your suppliers of nonorganic agricultural ingredients and urge them to get involved in this process.

5.  Find out if there are other processors who use the same material(s). If there are others, consider contacting them [to collaborate on] regarding the petition process.

6.  Where you consider it necessary consult with your counsel who advises you on petitions.

Please note that there is now official guidance for petitioning for nonorganic agricultural substances for Section 205.606. Please see:
under "Agricultural Marketing Service."

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