OTA Comments to NOSB, November, 2009
October 19, 2009
The Organic Trade Association (OTA) thanks the National Organic Standards Board (NOSB) for the opportunity to provide comments.
OTA is the membership-based business association for organic agriculture and products in North America. Its members include growers, shippers, processors, certifiers, farmers' associations, distributors, importers, exporters, consultants, retailers and others. OTA’s Board of Directors is democratically elected by its members. OTA's mission is to promote and protect the growth of organic trade to benefit the environment, farmers, the public and the economy (www.ota.com).
To begin with, OTA recognizes that group certification for retailers is no longer a topic under consideration by NOSB.
OTA agrees there is a need for education on best practices for marketing voluntary retail certification. OTA also believes CACC has identified many of the pertinent questions to be answered in a best-practices manual for marketing voluntary retail certification.
OTA further believes that NOP, Accredited Certifying Agents (ACA), retailers and industry stakeholders all play a role. But OTA believes that the ACA’s role should be part of the certification process and acceptance of the retailer’s Organic System Plan (OSP), not a pre-market approval process for in-store marketing materials. This approach would be inconsistent with all other entities certified by ACAs.
CACC asks the question that if departments are handling and processing according to section 205.270, should they be certified? OTA suggests that in a retail store, focusing on what the activity is makes the most sense—retailing, handling, or processing—and then assessing accordingly.
In order to answer the question raised by the committee, “Because these departments are handling and processing according to § 205.270, the CACC is asking if they should be certified?”, there needs to be clarification of definitions involved. Specifically looking at the definition of “raw and ready to eat” is important. Additionally it is important to explore whether there is a distinction in processing for deli, bakery or any other department in a retail handling operation.
OTA agrees there should clarification on the use of the seal within a voluntarily certified retail environment, and the guidelines developed should be consistent with those for use of the seal outside of product labels. As suggested by CACC, OTA is willing to help develop training and education materials for retailers on best practices. OTA suggests that the retailer could satisfy the education and training requirements, as outlined in its OSP, by completion of such a course or through other comparable means. OTA will share a draft of an updated version of the Good Organic Retail Practices Manual with CACC in CY 2010.
Personal Body Care Standards
OTA shares NOSB’s concern about non-certified or “mislabeled” organic personal care products on the market.
OTA can support the rule changes in the recommendation if they are intended to simply codify existing NOP policy that if any processed product, regardless of end use, meets the rule, it may be certified.
However, OTA believes it is premature to recommend that NOP regulate personal care products making an organic claim beyond those products voluntarily certified to NOP. The purpose NOSB gives to its recommendation, “to facilitate the development of a single national standard,” will require steps beyond the codification of current NOP policy. Inasmuch as USDA/NOP lacks legal jurisdiction over the regulation of cosmetics and personal care products, OTA questions how the recommendation would solve the problem identified.
OTA created a Personal Care White Paper Task Force in August to draft a paper outlining the legal, regulatory, jurisdictional, technical and market issues that comprise the current organic personal care product landscape. We respectfully submit this paper as part of OTA’s comment. OTA hopes this paper will serve both as background for interested parties and as a starting place for discussion on a range of policy approaches that may be taken to address the current situation. OTA is currently collecting comments from its members and others for additional input on this paper. While OTA is committed to participating in the process to seek resolution of the current situation, we are not yet prepared to advocate one of the policy approaches presented in the paper over another.
OTA believes that it is premature for NOSB to recommend that NOP regulate organic personal care products for various reasons, including:
o Implications for the National List—In order to adequately address the technical and functional requirements of a wider range of organic personal care products, the number of materials reviewed for inclusion in the National List would significantly increase. OTA has concerns about both the amount of effort this would require and the public perception of the value of the organic label if a large number of synthetic substances are recommended for addition to the National List.
o Implications for international trade—EU does not allow its organic food standard to be used for personal care or cosmetics. The trade in cosmetic ingredients and finished products is global, and equivalency concerns must be considered. It is our experience that other countries do not consider National List annotations when comparing lists of permitted substances, which could add a significant hurdle to negotiating future equivalency or organic trade agreements.
o More research is needed about consumer expectations and understanding of the meaning of the organic label on personal care products.
o Other possible solutions need to be more carefully examined.
OTA supports its members and other companies who have received certification to the current NOP rule, and who continue to work to formulate new ingredients and products that comply with the rule. This and similar expansion of the types of products manufactured in compliance with the current NOP rule will help grow the USDA Organic market.
Some companies have chosen to be third-party certified to private personal care organic standards. In the absence of USDA/NOP jurisdiction over personal care products, and in the absence of U.S. Food and Drug Administration (FDA) attention to organic labels, OTA supports these efforts as well. A central principal of organic integrity is third-party certification to a transparent standard.
Most concerning are products in the marketplace that make “organic” claims without any certification whatsoever and that often do not contain a substantial amount of organic ingredients. However, as OTA discovered in the course of drafting its paper, while there is great desire to immediately remedy this problem, an immediate or simple solution may not be readily at hand.
OTA notes that personal care products are regulated by FDA, and that language in the conference report accompanying the FY10 Agriculture Appropriations bill asks FDA to address labeling and jurisdictional questions:
"The conferees direct that the FDA provide to the Committees on Appropriations in the House and Senate; the Committees on Agriculture, Nutrition, and Forestry; and Health, Education, Labor, and Pensions in the Senate; and the Committees on Agriculture, and Energy and Commerce in the House of Representatives any recommendations on the need to establish labeling standards for personal care products for which organic content claims are made, including whether FDA should have pre-market approval authority for personal care product labeling."
OTA intends to monitor FDA’s progress in developing the recommendations and will urge timely completion of that recommendation. OTA believes the process of developing recommendations, which should provide a clear and strategic policy direction regarding jurisdiction, must include consultation with NOP and industry members.
OTA will continue to work with its members and other stakeholders over the coming months to determine what short- and long-term approaches will best meet the needs of the organic business community and organic consumers.
There are two basic types of nanotechnology: constructed molecules and particles whose size has been minimized. The first type, which would include built structures for delivery, encapsulation, and timed release, should easily be defined as synthetic and so would require NOSB approval to be placed on the National List. But making a milk shake creamier with nanosized emulsifier is simply good food science, even though it could be excluded under this recommendation.
The recommendation does not discuss the extent to which current food and personal care processing might be creating nanoparticles. This should be better understood before proposing such a sweeping recommendation in order to avoid unintended consequences.
Although NOSB does not intend to include nanoscale particles incidentally created through normal processing, the definition outlined does not convey that intent, and would include “the ability to control or manipulate at the atomic scale,” which could be a description of emulsification. This would unfairly put the onus on manufacturers to evaluate, justify or eliminate typical and accepted food processing techniques.
The minority opinion expressed in the recommendation seems to be a better approach. OTA believes that this recommendation is premature, and that any non-synthetic products of nanotechnology that NOSB wishes to prohibit should be individually considered. OTA disagrees that all nanoparticles may be synthetic, as some may be created through allowed processes such as mixing.
Production standards for terrestrial plants in containers and enclosures
OTA supports this recommendation with respect to specific practices that greenhouse producers must follow to ensure adequate separation between organic and conventional crops and protection of organic crops from contamination, as well as exemption from land and crop requirements that do not apply to greenhouse production. We also agree that both aeroponics and hydroponics as traditionally practiced are not compatible with organic production systems.
However, this recommendation does not recognize or provide for the possibility of organic greenhouse production based on aquaponics, or the integrated culture of aquatic animal species and terrestrial plants. Such ecologically complex systems use plants to both recycle nutrient-rich organic wastes from the aquatic animals and help maintain water quality. Although they are not soil-based, we suggest that aquaponic systems are nevertheless consistent with organic production principles.
As the recommendations for organic aquaculture move forward, such systems have the potential to produce two types of organic products, and offer the potential for expanded organic production closer to population centers.
OTA commends the Livestock Committee for the extensive effort it has devoted to the important subject of animal welfare, and agrees that “Animal welfare is a basic principle of organic production.” OTA also agrees that the rule needs substantial clarification so that desired outcomes are clear, measureable, and enforceable.
Nonetheless, OTA supports the call of the Accredited Certifiers Association (ACA) to change the status of this recommendation to a discussion document. OTA also agrees with ACA that, due to the importance of this topic and since the adoption of this recommendation would entail a major regulatory change in the National Organic Program Rule, NOSB should permit additional time for discussion and comments. Given the changes from last May and the level of prescriptive detail proposed , there has not been adequate time for stakeholders to consider and respond appropriately to this new recommendation.
This process of fully engaging stakeholders will best answer, how to clarify the regulation in a way that is neither too prescriptive nor unenforceable.
The direction of the document presented in May was to give clear statements in the rule and offer detailed guidance for its implementation, which seems much more workable for the level of change required. We suggest that this document would be most appropriate as guidance, with the principles of organic livestock management and animal welfare identified.(1) This could then be sent to NOP for rulemaking, which OTA believes is the appropriate role for NOSB in standards development.
Given the importance of the issue, the rulemaking process, perhaps including an advance notice of proposed rulemaking, is the best venue for engaging stakeholders and will result in the best clarification for upholding and refining the animal welfare standard. This, in turn, will allow the organic livestock sector to continue to thrive and meet the important standards for animal welfare that consumers expect and the regulation requires.
As NOP will be collecting data on stocking rates and densities as part of its work with Canada, this will give insight into the current situation and therefore the best way to proceed.
OTA therefore suggests that NOSB maintain the direction provided last May, articulating more clearly the principles on which organic standards addressing animal welfare should be based, and then requesting NOP to undertake rulemaking. NOP would then be able to craft a proposed rule that works for all stakeholders—producers, certifiers, the trade, consumers, and, of course, the animals.
Thank you very much for this work. This recommendation should be combined with the rest of the aquaculture work and moved to NOP for rulemaking.
Clarifications of the Definitions of the National List
Questions around the definitions of “synthetic,” “non-synthetic,” “agricultural,” and “non-agricultural” have always been difficult. OTA commends NOSB for its persistence in seeking clarification and hopes that our sponsorship of the conference calls of the Materials Working Group has helped NOSB think through some of the complexities of the issues.
OTA supports the proposed changes to the definition of “non-synthetic,” deleting “or bacterial culture” and the entire last sentence of the definition. The definition of “non-agricultural” remains problematic, however. It does not seem helpful to simply define “non-agricultural” as “not agricultural.” One alternative offered as an option by the Materials Working Group would be to delete the definition of “non-agricultural” entirely and revise the National List to require that any ingredient that could be organically produced must be used if it is commercially available.
OTA notes that under the OFPA definition, many food products used as ingredients in multi-ingredient foods, or parts of those foods, could be considered synthetic. Products of the Maillard reaction include parts of toasted bread and biscuits, malted barley (as in malt whiskey or beer), onions, roasted or seared meat, dried or condensed milk, roasted coffee, and dulce de leche. Products of caramelization (pyrolysis) include caramel made from milk and sugar, chocolate and maple syrup, and roasted peanuts. Also, the browning reactions in lean meat are most likely due to the breakdown of the tetrapyrrole rings of the muscle protein, myoglobin.
In addition to many cases of foods that are technically rendered synthetic when processed using accepted methods, there is no way to prevent manufacturers from combining two or more allowed ingredients in the course of accepted processing methods, even when the resulting ingredient or final product is technically synthetic. There needs to be a clear distinction between a non-organic synthetic input and an organic product that underwent chemical changes while being processed in a certified facility. This may be the intent of the recommendation but it is not stated. Without being stated the recommendation becomes unduly limiting.
Therefore, we disagree with the suggestion that a substance may not be both synthetic and agricultural, or even both synthetic and organic. The definition of “agricultural product” in OFPA and the NOP rule includes processing, and accepted processing methods can and do create synthetics according to the OFPA definition.
OTA also questions the use of the decision tree in the example of soy protein isolate. If a certifier has to determine whether or not something is synthetic before deciding whether it can be considered agricultural and therefore eligible for certification, different interpretations by different desk auditors are the likely result.
The objective should not be to classify as many materials as possible as synthetic—that is the approach that brought us synthetic sea salt, based on its anthropogenic precipitation from sea water. If some substance is possibly harmful to human health, it is and should continue to be addressed separately from simply assuming that synthetics are not appropriate for organic food. Clearly some organically produced foods are not good for everybody, especially if over-consumed. However, this does not justify treating the organic rule as a health food rule and using the synthetic versus non-synthetic determination to identify what is or is not appropriate. We disagree that “the use of synthetics violates the trust that consumers place in the organic label.” Synthetics have been a part of organic production and processing for decades.
OTA notes that NOSB did not agree with the distinction between “processing” and “manufacturing” discussed in the Materials Working Group (MWG) documents (see Page 5 of the May 2009 MWG discussion document). We also note additional concerns, identified on Page 7 of that document, requesting clarification of § 270(c)(2). We do not believe that the use of a synthetic processing aid would necessarily render a substance synthetic; this may be true in the case of crop and livestock substances, but (c)(2) is unclear as to whether it refers to a manufacturer of farm inputs or a handler of processed organic products. We also caution against the use of annotations, as suggested in this recommendation, especially to specify source materials that are required or prohibited. Such annotations are extremely difficult to enforce, and create excessive regulatory burdens that offer dubious verification value.
OTA therefore requests that NOSB defer a recommendation to a subsequent meeting when these issues can be resolved more clearly. The recommendation as it stands does not cover several necessary aspects of the problem, and would be detrimental to the trade if moved forward as currently articulated.
Materials for Sunset Review (Fall, 2011)
OTA does not support the recommendation that boiler chemicals be removed from the National List. Inasmuch as the recommendation does not seem to follow Board process, and the alternatives identified are not demonstrated to be viable, NOSB should not recommend dropping them. Instead, NOSB should examine the impact on manufacturers who currently use steam for sterilizing packaging before taking such a momentous step and assuming that adjustment of current methods will be easy or even possible.
OTA supports the comments submitted by Kim Dietz on this issue, which include greater detail on the rationale for this position.
(1) The following principle was included in the 1995 document outlining the basic precepts of organic production, as drafted by NOP staff and approved by the NOSB:
Provide attentive care that meets both health and behavioral requirements of farm animals.
Farm animals are managed to prevent health problems through a focus on diet, housing, handling and observation. Livestock are bred and selected to enhance stamina and vigor. Organically produced feed, in conjunction with care and living conditions which minimize stress, is the foundation of a health promoting management system. Attentive care for the healthy animal is a fundamental precept of organic livestock management.