December, 1997

Questions and answers about the National Organic Program proposed rule

By Jane Dodds
USDA

On December 15, the federal government issued proposed rules which would govern United States organic food production.

Here are some answers to commonly-asked questions about the proposed regulations.

Q - What will be the role of USDA in certifying organic farms, wild crop harvesting operations, and handling operations?
A - The Organic Foods Production Act of 1990 (OFPA) requires the certification of operations producing and handling organic products, except in limited circumstances. Under our proposal, the system used to produce and handle organic products, rather than the product itself, would be certified. The activities involved in certifying organic operations, such as reviewing applications, conducting inspections, and determining certification status, would be conducted by state and private certifying agents accredited by USDA. USDA would conduct the process for denying or terminating certification.

Q - What is the process for USDA accreditation of state and private certifying agents?
A - Provide several safeguards to ensure that the organic standards and certification requirements are fairly and impartially enforced. To become accredited, an applicant would have to demonstrate that its personnel have the capability and experience to carry out the certification program. As part of the accreditation process, USDA would conduct a site evaluation to review the performance of the certifying agent. The report prepared by the USDA site evaluator would be reviewed individually by private sector peers who have experience in organic farming and handling and in organic certification. The USDA also could conduct a site evaluation at any time to evaluate the performance and decisions of the certifying agent.
Certifying agents would be required to conduct annual performance reviews of their inspectors and their own certification process. Information about these performance reviews, in addition to updates for other certification-related activities, would be provided to USDA annually.

Q - Can a state be accredited as a certifying agent without having a state organic program?
A - A state could apply for accreditation and be accredited by USDA as a certifying agent without the state itself establishing a state organic program. A state that uses the National Organic Program standards may want to provide certification services for the organic producers and handlers in that state.

Q - Can a state have a state organic program without being accredited as a certifying agent?
A - A state could operate an approved state program without establishing its own certification program. Rather than utilizing state resources to perform certification activities, a state could rely instead on USDA-accredited private certifying agents to certify operations within the State.

Q - Can a state organic program contain requirements other than those established by the National Organic Program?
A - The OFPA requires a State organic program to meet the requirements of USDA's National Organic Program and to be approved by USDA. The OFPA permits a state program approved by USDA to include additional requirements, beyond those contained in USDA's program, provided that all additional requirements are consistent with the purposes of the act, including the purpose to establish consistent, uniform national standards for organic production and handling. An example of an additional requirement that might be approved is one that requires more frequent inspections of certified operations than that provided for in USDA's program. Any state in which additional requirements are established and approved for the production or handling of organic products could not prevent the sale in that state of products produced in another State, regardless of whether these products were produced under a program that contained these additional requirements.

Q - Would the proposed rule permit processed organic foods to contain synthetic ingredients? Would synthetic processing aids be permitted in processing organic foods?
A - The proposed rule would allow up to 5% of the weight of a finished processed product, that is represented as organically produced, exclusive of water or salt, to be ingredients that are not organically produced, provided that the non-organic ingredients are included on the National List.
The proposed National List includes two categories of non-organic ingredients. The first category - non-agricultural ingredients - includes such ingredients as baking powder, yeast, natural coloring, thickeners, and enzymes, which cannot be organically produced because they are not agricultural products. The second category - non-organic agricultural ingredients - allows the use of any agricultural ingredient when the organic form of the ingredient is not commercially available. Although the proposed National List does not distinguish between synthetic and non-synthetic forms of a non-agricultural ingredient, the proposed rule requires that, when possible, a non-synthetic ingredient be chosen over a synthetic ingredient.
The proposed rule would permit the use of a synthetic processing aid in those instances when its use was necessary due to the ineffectiveness of methods that did not involve the use of processing aids, such as the use of potassium hydroxide to achieve color, finish, and crispness in pretzels. The proposed National List does not include a separate category for processing aids.

Q - How does the proposed rule address the level of pesticide residues in organic foods?
A - We propose to establish a system of residue testing, as required by the OFPA, to enforce the regulations. We would require certifying agents to conduct periodic residue testing of organic products and to conduct an investigation of a certified farm when a pesticide residue found in an organic product produced by the certified farm exceeded a maximum level, which in most cases would be 5% of the established EPA tolerance for the pesticide residue. A product produced on a certified organic farm could not be sold as organic if the investigation showed that the residue was a result of an intentional application of a prohibited substance or was present at levels that exceeded the level of the pesticide caused by unavoidable residual environmental contamination. The unavoidable residual environmental contamination level will vary by geographic region, pesticide, and agricultural product tested.
The organic label on a product certifies that it was produced according to a system of organic farming and handling. It is not, and has never been, a guarantee that the product is free of any pesticide residue.
Pesticide residues may occur in agricultural products due to the unavoidable presence of residual chemicals in the soil, water, and air. As a result, minute quantities of chemical residues may occur in organically grown crops, despite the utmost care in their production and handling.

Q - Does the proposed rule permit genetically engineered organisms to be used in organic production?
A - The OFPA does not specifically address the use of genetically engineered organisms. The National Organic Standards Board (NOSB) recommended that genetically engineered organisms be prohibited from being labeled as organically produced. The policy of the United States government is that genetically engineered organisms and their products should be regulated on risk, not on how they are produced. We are requesting public input on whether the use of genetically engineered organisms or their products in organic farming and handling should be permitted, prohibited, or allowed on a case-by-case basis.

Q - How does the proposed rule address the subject of irradiation of organic foods?
A - The Food and Drug Administration has allowed irradiation to be used on food products other than red meat for several years, and in early December 1997, approved its use on red meat. The OFPA does not specifically address the use of irradiation. The NOSB has recommended, consistent with most existing state and private certification agency organic standards, that the use of irradiation be prohibited in handling organic products. We are requesting public comment concerning the subject of irradiation of organic products in order to evaluate its compatibility with the principles of organic handling.

Q - How does the proposed rule address the use of raw manure in growing organic foods?
A -Most existing state and private certification agency organic standards restrict the use of raw manure by imposing certain conditions on its use on land used to grow crops intended for human consumption. The OFPA and the proposed rule provide for the use of raw manure on land that is not used to grow crops for human consumption.
Although we acknowledge that the use of animal manure, whether applied directly to a field or composted, is common in organic agriculture, there is inadequate data to make the determinations necessary regarding the safety of the crop after application of raw manure. The proposed rule requests public input on guidelines for the use of raw and composted livestock manure in organic production of food intended for human consumption that should be included in the final rule to ensure safety of organic food. This is consistent with the efforts currently being pursued by USDA and FDA to address food safety issues regarding the use of manure in agricultural production.

Q -What labeling provisions are proposed in the rule for organic products compared to products that contain organic ingredients?
A - Products that contain a minimum of 95% organic ingredients by weight, excluding water and salt, may be labeled "organic" on the principal display panel. For example, the principal display panel of these products may state "organic whole wheat flour," "organic cheese," or "organic bread." In contrast, products that contain between 50-95% organic ingredients by weight, excluding water and salt, would be required to be labeled on the principal display panel as "made with certain organic ingredients" and could not include other references to organic ingredients on this panel. In both cases, the specific ingredients that are organically produced would be identified in the ingredients listing.
The USDA seal may be used only on products that contain a minimum of 95% organic ingredients by weight. The proposed labeling regulations would apply to any product that implies directly or indirectly on its label that the product was produced using organic methods. Products that contain less than 50% organic ingredients may use the term "organic" only in the ingredients listing.

Q - What provisions are made to collect user fees for the activities of the National Organic Program?
A - Fees are proposed to be collected from each certifying agent to recover the costs to review accreditation applications, assess annual reports prepared by accredited agents, perform administrative functions, and conduct site evaluation visits. Additionally, USDA proposes to assess a fee of $50 from each certified organic farmer and $500 from each certified organic handler annually to recover costs. Operations selling $5,000 or less of agricultural products each year are exempt from mandatory certification.

Q - Can imported products be labeled "organic"?
A - Products imported from foreign countries may be labeled as organic if the products are produced, handled, and certified by a foreign organic program that has been determined by USDA to be equivalent to the National Organic Program. A determination of equivalency would not require that all standards of the foreign program be identical to those of the National Organic Program.

Q - What is the role of the NOSB?
A - The National Organic Standards Board, an advisory board to USDA, had a major role in the development of the proposed rule. The NOSB solicited a wide array of public input for use in preparing its recommendations to USDA regarding most aspects of the proposed rule. The NOSB also developed and reviewed a comprehensive list of substances for possible inclusion on the proposed National List. We expect the NOSB to continue advising USDA on program implementation and future necessary revisions to program regulations.