Subj: Re: sanet-mg-digest V1 #216
Date: 03/13/98
To: sanet-mg@ces.ncsu.edu
In a message dated 98-03-12 18:11:56 EST, you write:
<<
Date: Thu, 12 Mar 1998 18:58:43 -0400
From: dan.worley@icepr.com (Daniel D. Worley)
Subjec >>
Dear Sanet readers:
This former Oklahoma farm laborer and retired Navy man has been following
the little side debates here regarding the NOP and USDA Rules for a while
without commenting. But I think it may be time for me to enter my two cents
worth. Read the following comments by Douglas Johnson and then see my
response below.
Douglas writes:
>A day or two ago, I posted a note that said the USDA NOP standards will
>only set a new minimum that many entrepreneurial farmers and processors
>will soon choose to exceed. Craig Cramer then shared a website in which FVO
>announced there intent to exceed government standards.
To contribute to this discussion, I offer the following analysis:
After years of public discussion on the issue of what does the Organic Foods
Production Act say on the right of private entities and State governments to
establish standards for organic farm and handling operation, it would be
valuable for all to agree on what is said in the law. Such an agreement is
and would be binding, not only on the USDA, but the States and private
entities and would one would hope eliminate some of the misunderstandings.
Analysis follows:
Starting with a quote:
§2102 PURPOSES.
It is the purpose of this title
(1) to establish national standards governing the marketing of certain
agricultural products as organically produced products; (2) to assure
consumers that organically produced products meet a consistent standard;
The term used is "consistent," not minimum.
Secondly, in examining how the standards can be improved or modified in the
future:
Regarding changes in the National List:
§2119 NATIONAL ORGANIC STANDARDS BOARD.
(k) RESPONSIBILITIES OF THE BOARD.
(2) NATIONAL LIST. The Board shall develop the proposed National List or
proposed amendments to the National List for submission to the Secretary in
accordance with section 2118.
and:
(n) PETITIONS. The Board shall establish procedures under which persons may
petition the Board for the purpose of evaluating substances for inclusion on
the National List.
Regarding changes in the "standards" utilized in managing organic farm and
handling operation systems or the accreditation/certification and import
equivalency:
§2104 NATIONAL ORGANIC PRODUCTION PROGRAM.
(a) IN GENERAL. The Secretary shall establish an organic certification
program for producers and handlers of agricultural products that have been
produced using organic methods as provided for in this title.
(c) CONSULTATION. In developing the program under subsection (a), and the
National List under section 2118, the Secretary shall consult with the
National Organic Standards Board established under section 2119.
§2119 NATIONAL ORGANIC STANDARDS BOARD.
(a) IN GENERAL. The Secretary shall establish a National Organic Standards
Board (in accordance with the Federal Advisory Committee Act (5 U.S.C. app. 2
et seq.)) (hereafter referred to in this section as the "Board") (to assist
in the development of standards for substances to be used in organic
production and to advise the Secretary on any other aspects of the
implementation of this title.
and:
(k) RESPONSIBILITIES OF THE BOARD.
(1) IN GENERAL. The Board shall provide recommendations to the Secretary
regarding the implementation of this title.
Under OFPA State governing officials relate in the following manner:
§2104 NATIONAL ORGANIC PRODUCTION PROGRAM.
(a) IN GENERAL. The Secretary shall establish an organic certification
program for producers and handlers of agricultural products that have been
produced using organic methods as provided for in this title.
(b) STATE PROGRAM. In establishing the program under subsection (a), the
Secretary shall permit each State to implement a State organic certification
program for producers and handlers of agricultural products that have been
produced using organic methods as provided for in this title (Section 2108)
§2108 STATE ORGANIC CERTIFICATION PROGRAM.
(a) IN GENERAL. The governing State official may prepare and submit a plan
for the establishment of a State organic certification program to the
Secretary for approval. A State organic certification program must meet the
requirements of this title to be approved by the Secretary.
(b) ADDITIONAL REQUIREMENTS.
(1) AUTHORITY. A State organic certification program established under
subsection (a) may contain more restrictive requirements governing the organic
certification of farms and handling operations and the production and handling
of agricultural products that are to be sold or labeled as organically
produced under this title than are contained in the program established by the
Secretary.
(2) CONTENT. Any additional requirements established under paragraph (1)
shall
(A) further the purposes of this title;
(B) not be inconsistent with this title;
(C) not be discriminatory towards agricultural commodities organically
produced in other States in accordance with this title; and
(D) not become effective until approved by the Secretary.
(c) REVIEW AND OTHER DETERMINATIONS.
(1) SUBSEQUENT REVIEW. The Secretary shall review State organic
certification programs not less than once during each 5-year period following
the date of the approval of such programs.
(2) CHANGES IN PROGRAM. The governing State official, prior to implementing
any substantive change to programs approved under this subsection, shall
submit such change to the Secretary for approval.
Regarding private person, for profit or non-profit having an "approved"
organic certification program, there are no provisions under OFPA.
Under OFPA a private person, for profit or non-profit, may apply to be
accredited as an USDA accredited organic certifier as follows. Section 2103
defines (15) PERSON. The term "person" means an individual, group of
individuals, corporation, association, cooperative or other entity.
§2115 ACCREDITATION PROGRAM. (a) IN GENERAL. The Secretary shall establish
and implement a program to accredit a governing State official, and any
private person, that meets the requirements of this section as a certifying
agent for the purpose of certifying a farm or handling operation as a
certified organic farm or handling operation.
(b) REQUIREMENTS. To be accredited as a certifying agent under this section,
a governing State official or private person shall (1) prepare and submit, to
the Secretary, an application for such accreditation;
(2) have sufficient expertise in organic farming and handling techniques as
determined by the Secretary; and
(3) comply with the requirements of this section and section 2116.
(c) DURATION OF DESIGNATION. An accreditation made under this section shall
be for a period of not to exceed 5 years, as determined appropriate by the
Secretary, and may be renewed.
§2116 REQUIREMENTS OF CERTIFYING AGENTS.
(a) ABILITY TO IMPLEMENT REQUIREMENTS. To be accredited as a certifying
agent under section 2115, a governing State official or a person shall be able
to fully implement the applicable organic certification program established
under this title.
(b) INSPECTORS. Any certifying agent shall employ a sufficient number of
inspectors to implement the applicable organic certification program
established under this title, as determined by the Secretary.
(c) RECORDKEEPING.
(1) MAINTENANCE OF RECORDS. Any certifying agent shall maintain all records
concerning its activities under this title for a period of not less than 10
years.
(2) ACCESS FOR SECRETARY. Any certifying agent shall allow representatives of
the Secretary and the governing State official access to any and all records
concerning the certifying agent's activities under this title.
(3) TRANSFERENCE OF RECORDS. If any private person that was certified under
this title is dissolved or loses its accreditation, all records or copies of
records concerning such person's activities under this title shall be
transferred to the Secretary and made available to the applicable governing
State official.
(d) AGREEMENT. Any certifying agent shall enter into an agreement with the
Secretary under which such agent shall (1) agree to carry out the provisions
of this title; and (2) agree to such other terms and conditions as the
Secretary determines appropriate. (e) PRIVATE CERTIFYING AGENT AGREEMENT.
Any certifying agent that is a private person shall, in additional to the
agreement required in subsection (d)
(1) agree to hold the Secretary harmless for any failure on the part of the
certifying agent to carry out the provisions of this title; and
(2) furnish reasonable security, in an amount determined by the Secretary, for
the purpose of protecting the rights of participants in the applicable organic
certification program established under this title.
(f) COMPLIANCE WITH PROGRAM. Any certifying agent shall fully comply with the
terms and conditions of the applicable organic certification program
implemented under this title.
(g) CONFIDENTIALITY. Except as provided in section 2107 (a)(9), any
certifying agent shall maintain strict confidentiality with respect to its
clients under the applicable organic certification program and may not
disclose to third parties (with the exception of the Secretary or the
applicable governing State official) any business related information
concerning such client obtained while implementing this title.
(h) CONFLICT OF INTEREST. Any certifying agent shall not
(1) carry out any inspections of any operation in which such certifying agent,
or employee of such certifying agent has, or has had, a commercial interest,
including the provision of consultancy services;
(2) accept payment, gifts, or favors of any kind from the business inspected
other than prescribed fees; or
(3) provide advice concerning organic practices or techniques for a fee, other
than fees established under such program. (I) ADMINISTRATOR. A certifying
agent that is a private person shall nominate the individual who controls the
day-to-day operation of the agent.
(j) LOSS OF ACCREDITATION.
(1) NONCOMPLIANCE. If the Secretary or the governing State official (if
applicable) determines that a certifying agent is not properly adhering to the
provisions of this title, the Secretary or such governing State official may
suspend such certifying agent's accreditation.
(2) EFFECT ON CERTIFIED OPERATIONS. If the accreditation of a certifying
agent is suspended under paragraph (1), the Secretary or the governing State
official (if applicable) shall promptly determine whether farming or handling
operations certified by certifying such agent may retain their organic
certification.
So, in conclusion:
Under the Act of Congress, the United States National Organic Program provides
for only one consistent, uniform and single consistent "national" standard for
the systems utilized in organic farm and handling operations, leading to the
right to label food and fiber products as "organically produced." Under OFPA,
no "person," which includes States, can claim the products so labeled
"organically produced" are organically higher or have higher organic standards
than any other product produced domestically or imported for sale in the US.
Why was this incorporated in OFPA? Because such a statement of higher organic
is purely subjective, because no public comparison with clearly identified
criteria will have been made.
However, there are no restrictions or limitations within OFPA from any
certifier or individual farm or handling operation from stating in exact terms
what their strongly felt "qualities" of their product may be. For instance:
"free range chickens", "eggs from free range chickens", "no confinement", "no
synthetic fertilizers", "no synthetic processing aids", "no synthetic
colorings", "no synthetic flavorings", "grown locally, home grown", "produced
without synthetic pesticides"; "produced without synthetic fertilizers";
"raised without synthetic chemicals"; "pesticide-free farm"; "no drugs or
growth hormones used"; "raised without antibiotics"; "raised without
hormones"; "no growth stimulants administered"; "ecologically produced";
"sustainably harvested"; "humanely raised" or the names of businesses like FVO
now changing to ICS, OCIA, Oregon Tilth, OGBA, CCOF, NOFA-NJ or Tenderloin
Organic Farm, etc.
Under OFPA anyone, including any accredited USDA certifier can "certify" a
product is produced to any other standard they desire. They must call it
their standard, describe the standard or identify the standard. For instance
OCIA's organic standard or CCOF's organic standard or the EU organic standard
of organic farming and handling or IFOAM's standard for accreditation. It is
up to the public, the consumer to draw their own and individual conclusion of
whether a particular statement or certification indicates a "higher" organic
standard. Simply put, under OFPA, no person can print a label or directly or
indirectly provide market information that implies their product is produced
to "higher" organic standards than the National Organic Program.
§2106 COMPLIANCE REQUIREMENTS.
(a) DOMESTIC PRODUCTS.
(1) IN GENERAL. On or after October 1, 1993
(A) a person may sell or label an agricultural product as organically produced
only if such product is produced and handled in accordance with this title;
and
(B) no person may affix a label to, or provide other market information
concerning, an agricultural product if such label or information implies,
directly or indirectly, that such product is produced and handled using
organic methods, except in accordance with this title.
(2) USDA STANDARDS AND SEAL.
A label affixed, or other market information provided, in accordance with
paragraph (1) may indicate that the agricultural product meets Department of
Agriculture standards for organic production and may incorporate the
Department of Agriculture seal.
The purpose in OFPA as stated in Section 2102 is the reason for OFPA having
secured restrictive use of the term "organic."
§2102 PURPOSES.
It is the purpose of this title
(1) to establish national standards governing the marketing of certain
agricultural products as organically produced products;
(2) to assure consumers that organically produced products meet a consistent
standard;
Relating to business identities or food/fiber descriptions other than red
meat, poultry and processed eggs (for which one has to get prelabel approval)
under US law, anyone can describe their products anyway they want as long as
they are not misleading or deceiving the customer. Passage of the Organic
Foods Production Act does preempted the use of the term "organic" for the use
of only those fulfilling the OFPA requirements. OFPA is in fact a licensing
of the word "organic." OFPA mandates an USDA administered franchise program
carried out in the public's interest, which under OFPA must charge "reasonable
fees." Section 2107(a)(10)
As a last statement, let me say, the only way a National Organic Program is
going to benefit organic farmers, handlers and consumers is if it is rigidly
implemented as written. All suggestions for structural or substantial
modifications to OFPA should be directed to Congressional representatives.
Thus the reason for issuing a new Proposed Organic Rule that is in its
entirety consistent with OFPA.
I would appreciate comment on any inconsistencies or misinterpretations in
this analysis of OFPA.
Best Regards,
Eric Kindberg erorganic@aol.com
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