Eric: There is no necessity or authority under OFPA that any certifier should
or can verify an organic farmer's or handler's "additional" labeling claim.
OFPA certainly does not call for any verification of such "additional"
labeling claims. Truth in labeling is well established in US law.
There is a provision in the Organic Foods Production Act that is being used
the basis for these claims. Under "Other Production and Handling Practices"
(6512) the Act provides that
"If a production or handling practice is not prohibited or
otherwise restricted under this chapter, such practice shall be
permitted unless it is determined that such practice would be inconsistent
with the applicable organic certification program."
This provision was included in the law to make it clear that the law did not
prevent producers and manufacturers of organic food from doing more than the
Contrary to the above interpretation, the provision was not intended to
indicate a judgement of doing more or less. The OFPA provision guaranteed a
certified organic farmer or handler to not be interfered with in their
business by additional requirements being placed on their farming or handling,
beyond the Act, as long as the practices used in farming or handling were not
inconsistent with the Act. The certified organic farm or handling operation
could not retain its organic certification status if a practice was
inconsistent with OFPA or the rule. The Section 2113 of OFPA provision
neither directly nor indirectly indicates any reference to labeling claims.
Neither in the Proposed Rule, it's supplementary information (the so called
preamble) can I find support for the following statement:
But the preamble to the rule uses this provision to open the door for
producers and handlers to make additional label claims and to request that
certifiers verify those claims. The preamble says:
"Our proposal would not prohibit a certifying agent from
verifying that a producer or handler it certifies is meeting contractual
specifications that include requirements in addition to those of the Act and
The Preamble goes on to say, however, that this right would still
". . . prohibit the use of the certifying agent's logo or seal on a
label, labeling material or other market information to represent compliance
with farming or handling requirements in addition to those provided under the
Act and the regulations in this part." (p. 278)
While this provision may appear to give consumers and many segments of the
industry what they wanted---the right to exceed the legal standard and be
recognized in the marketplace for doing so---it would seriously jeopardize
credibility of certification. What this proposal does is to turn
certification on its head.
Credible certification begins with standards. The standards need to be
clearly, explicitly and publicly stated. Then the inspection and
certification process needs to be designed to insure compliance to the
standards. Furthermore, an audit trail system needs to track the products
produced in accordance with the standards to insure that all ingredients in
the product conform to the standard.
Finally, the certification process needs
to be monitored by an independent body to ascertain that all of these
procedures are properly and competently administered.
According to this internationally recognized system of certification, anyone
wanting to use the organic label has to conform to the courtier's standard
BEFORE they can make the label claim. The provision in the rule would
that time-honored system. It would encourage producers or manufacturers to
make their own private label claims and then ask the certifier to verify that
the claims were true. In other words the initiative for label claims would
driven by the market rather than by the standard.
Interesting that the above proposal tries to go beyond OFPA and use the
Congressional authority granted by OFPA to provide private certifiers with
"Congressional" authority to pre certify to additional label claims. If the
private certification businesses desires to set "guidelines of certification"
whereby everyone using their label must apply and be certified, that sounds
legal and reasonable. However, OFPA does not grant them authority to enforce
such a requirement. And it certainly does not give them authority to require
an organic certification applicant under OFPA to fulfill their "additional"
certification requirements to use their label and certainly not the USDA
§2113 OTHER PRODUCTION AND HANDLING PRACTICES. States:
"If a production or handling practice is not prohibited or otherwise
restricted under this title, such practice shall be permitted unless it is
determined that such practice would be inconsistent with the applicable
organic certification program."
The USDA Proposed Rule does not use this section any way as Fred quotes. The
section states clearly it applies to "Production and Handling Practices" and
has nothing to do with certification of "additional" practices, but with the
USDA/NOP, the NOSB or an accredited state or private certifier having the
authority to indicate to a certification applicant that a particular practices
is inconsistent with OFPA and the NOP and therefore must cease and desist for
organic certification of the farm or handling operation to be accomplished.
This approach to certification is unworkable and unwise. It is unworkable
because it would put certifiers into the position of having to customize
certification to meet the marketing whims of every producer or manufacturer
wanting to make additional label claims without having previously crafted the
standards and procedures for doing so. No certifier could competently and
credibly respond to such a plethora of label claims.
Eric: No one has asked the certifiers to respond to a "plethora of label
claims." Certifiers are private entities, businesses, and should respond, as
they feel fit. Nothing in the Act directs or authorizes anymore than the
requirements of the Act. All OFPA authorizes is the certification of a farm
or handling operation " as utilizing a system of organic farming (or handling)
as described by this title. Section 2103 (4) and (5).
It is unwise because it would encourage the development of a crazy quilt of
label claims that consumers could have little confidence in because of the
impossibility of credibly verifying such claims without prior standards and
procedures. It WOULD, however, give the APPEARANCE of credibility because
producers and manufacturers could allege that their claims were third party
In the US, anyone can hire a third part to certify any claim, usually on your
signature, like a notary. Under OFPA however, to claim one is organic, one
must secure certification through an USDA accredited organic certifier. An
accredited organic certification agent is not third party independent but an
agent of the USDA.
OFPA does not even mention "independent third party" in its language. The
preamble to the Proposed Rule and the Proposed Rule itself never mention the
term "third party" or "independent third party" regarding organic
There is also no way that any accrediting body could reliably monitor such a
crazy quilt of label claims to insure that they were properly certified.
A more reasonable and credible approach to providing for additional label
claims is the one that USDA has consistently refused to honor, namely
certification bodies to exceed the legal standard and be recognized in the
marketplace for doing so through their logos and trademarks.
Any certifying/verification agent can certify or verify anything. OFPA, the
NOP does not prevent such certifying/verification. There is no reason under
OFPA and the USDA/NOP to provide for certification of any "additional" label
claims. That is up to every organic farmer and handler to decide on. It is
clear under OFPA, the only limitation is the certifier cannot state their
certification indicates that a particular farm or handling operation has a
"higher," "enhanced" or superior system of organic farming or handling than
the USDA/NOP standards. Why, follow below:
There is only one standard of organic farming and handling under OFPA. OFPA
is not a minimum organic standard; it is the only organic standard for
domestic or imported produced organic food and fiber products.
Under OFPA, the NOSB is the public forum for changing, improving or modifying
the National Organic Standards. "Organic" has gone public. There are no
closed-door decisions or subtle low public participatory changes in standards
or certification status. "Organic," under OFPA truly now stands for
"transparency." Why? So, the customer knows what they are paying for. All
accredited private certifiers and state certifiers now have very clear job
descriptions. They are to certify to the requirements of the National Organic
Program, nothing more nor less to grant the use of the labeling term
"organic." Furthermore, they are to certify in the agreed upon set of
procedures, steps, checks and balances set forth by the National Organic
Program. Under OFPA, all organic standards are now equal-reciprocity is
It is also important to note the language prohibiting the use of private seal
logos and trademarks specifically prohibits private certifiers from using
their trademarks as a marketing tool, since their logos or seals could not be
used to "represent compliance with farming or handling requirements in
addition to those provided under the Act" in EITHER the "label, labeling
material or other market information." That clearly is an infringement on
trademark use and amounts to a "taking" of private certifiers trademarks.
The above is a misquote of the Proposed Rule. It states:
A private person or governing State official accredited as a certifying
agent under this subpart may establish a seal, logo or other identifying mark
to be used by farms, wild crop harvesting operations, and handling operations
certified by the certifying agent to denote affiliation with the certifying
agent, Provided, That the certifying agent:
(2) Does not require as a condition of use of its identifying mark compliance
with any farming or handling requirements other than those provided for in
the Act and the regulations in this part."
The reference does not exclude certifying to any farming or handling
requirements, but only to other ORGANIC requirements than those embodied in
OFPA and the Final Rule.
Furthermore, I agree with Fred there is no legal basis in OFPA or in any
federal law that I am aware of (exclusive of the pre-label approval mandatory
under FSIS for meat and processed eggs) for prohibiting independent third part
verification of any claim. There is nothing in the Act that would prohibit
the certifier from both verifying a claim, and the so verified farm or
handling operation from stating what was verified on a label, labeling
material or as other market information. However returning to the old dirge,
no such "additional achievements" could directly or indirectly state on the
label, labeling material or market information "superior," "higher" or
"enhanced" organic standards over the National Organic Program standards.
Simply stating a verified fact is acceptable under OFPA. Stating a non-
verified fact is acceptable also with the exception of FSIS requirements. No
one has to verify that you compost all your manure for an organic farm to
state such on the label.
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