Organic Farmers Marketing Association, www.iquest.net/ofma/
Communication/Telecommunication Committee
Eric Kindberg, Co-chair, erorganic@aol.com
January 10, 1999
To not receive this type of bulletin send an email to erorganic@aol.com
The Organic Farmers Marketing Associations response:
Of utmost concern is the process and procedures on how the National Organic
Standards Board and its Committees develop proposed Draft Recommendations to
the Secretary, in particular how the NOSB actively involves the organic
community and the public in commenting on Draft Recommendations.
The NOSB and its Committees are not following Draft Recommendation process and
procedures as adopted and used by the National Organic Standards Board (NOSB.)
Being specific, we state:
-The organic community and the public are not being provided access to
proposed NOSB Draft Recommendations in an orderly and timely fashion. At
least 30 days and better 45 days must be allowed for the public to comment on
proposed Draft Recommendations.
-Proposed Draft Recommendations are not being written in numerical line format
to allow efficient, very clear and useful comments back to the Committee.
-The USDA/NOPs mailing list is made up of thousands of names and addresses of
citizens that have requested to receive in paper form NOSB proposed Draft
Recommendations. It is constantly updated and added to. The NOSB and its
Committees are not requesting USDA/NOP to send out proposed Draft
Recommendations and other important NOSB documents to the mailing list.
The result is the NOSB and its Committees have been and are losing credibility
in the organic community.
The difficulty in providing a quality, clear and useful response to the
Committee is well illustrated by the Organic Farmers Marketing Association
being unable to reference line item and OFMA's proposed rewrite of the
line(s), but instead having to offer notes and comments as below.
The Organic Farmers Marketing Associations (OFMA) comments:
OFMA comments:
The Organic Farmers Marketing Association knows that in the consumers mind how
each section of the Organic Foods Production Act (OFPA) is implemented
reflects directly on the integrity of the "organically produced" label.
Therefore, we as certified organic farmers have:
1. Made a group decision that the Organic Foods Production Act must be
implemented as written or amended. Following standards and practices that are
transparent to the public is the only way to maintain consumer trust.
2. Made a group decision that we as certified organic farmers and associated
members must seek implementation consistent to the language and intent of each
section of OFPA, whether it be handling, equivalency, National List, public
access to certification records and residue testing, etc. To not do so is
hypocrisy.
3. Made a commitment that the National Organic Standards Board is the form for
open public discussion and Recommendation to the Secretary of the Proposed
National List, amendments to the National List and programmatic
Recommendations to enhance the implementation of the USDA National Organic
Program.
We encourage organic customers, coops, farmers, handlers, certifiers, the
press, trade organizations and the general public to join us in these
commitments.
>From: Joan Gussow
>
>As you know, the Ad Hoc Committee on Processing Criteria, came up with a
series of criteria for materials that might be allowed in organic
processing, wording our final memo to make clear that nothing had yet been
decided about whether the law allowed synthics in "Certified Organic"
processing. Subsequently, Steve Harper of our committee, added some
material up front that clarified where our criteria had come from, and
sent it out for comment.
OFMA comments:
The OFPA language and intent mandates three descriptive categories of consumer
labeling to identify products produced on certified organic farms.
Implementation of OFPA must conform to the Act.
Category 1: "Organically Produced"
Is the 95/5 category or requiring a processed food to be 95% of the dry weight
minus salt produced on certified organic farms with up to 5% possible of the
processed food content being composed of non-synthetic, but not organically
produced substances petitioned, reviewed and included on the USDA's National
List of exempted substances. When such a product is handled by a certified
organic handling operation, such product may be labeled as "organically
produced."
Section 2103: (14) ORGANICALLY PRODUCED. The term "organically produced"
means an agricultural product that is produced and handled in accordance with
this title.
Reference Section 2105 and: §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.
Consistent to OFPA, no synthetic substance can contact or be an ingredient in
a processed product sold and labeled as "organically produced."
References: For a product to be labeled as "organically produced" the handling
operation must meet the following OFPA mandated requirements:
§2107 GENERAL REQUIREMENTS.
(a) IN GENERAL. A program established under this title shall
(1) provide that an agricultural product to be sold or labeled as organically
produced must
(A) be produced only on certified organic farms and handled only through
certified
organic handling operations in accordance with this title; and
(B.) be produced and handled in accordance with such program.
And:
§2111 HANDLING.
(a) IN GENERAL. For a handling operation to be certified under this title,
each person on such handling operation shall not, with respect to any
agricultural product covered by this title
(1) add any synthetic ingredient during the processing or any post harvest
handling of the product;
(2) add any ingredient known to contain levels of nitrates, heavy metals, or
toxic residues in excess of those permitted by the applicable organic
certification program;
(3) add any sulfites, nitrates, or nitrites;
(4) add any ingredients that are not organically produced in accordance with
this title and the applicable organic certification program, unless such
ingredients are included on the National List and represent not more than 5
percent of the weight of the total finished product (excluding salt and
water);
(5) use any packaging materials, storage containers or bins that contain
synthetic fungicides, preservatives or fumigants;
(6) use any bag or container that had previously been in contact with any
substance in such a manner as to compromise the organic quality of such
product; or
(7) use, in such product water that does not meet all Safe Drinking Water Act
requirements.
(b) MEAT. For a farm or handling operation to be organically certified under
this title, producers on such farm or persons on such handling operation shall
ensure that organically produced meat does not come in contact with
nonorganically produced meat.
In contrast to these strict requirements cemented in OFPA, encouragement was
provided for processors to use "organically produced" products and label their
products "made with organic ingredients." Such use that might include contact
with or inclusion of synthetic substances, and might include ingredients or
substances that were not included on the National List can be labeled as "made
with organic ingredients." Category 1 and 2 labeling exempts the processor,
the handling operation, from all other requirements of the Organic Foods
Production Act.
Category 2: "Made with Organic Ingredient"
Is an exemption for processed food stating:
Subsection (a) of Section 2106 shall not apply to agricultural products that
contain at least 50 percent organically produced ingredients by weight,
excluding water and salt, to the extent that the Secretary, in consultation
with the National Organic Standards Board and the Secretary of Health and
Human Services, has determined to permit the word "organic" to be used on the
principal display panel of such products only for the purpose of describing
the organically produced ingredients; or
Category 3: "Made with Organic Ingredient"
Is an exemption for processed food stating:
Subsection (a) of Section 2106 shall not apply to agricultural products that
contain less than 50 percent organically produced ingredients by weight,
excluding water and salt, to the extent that the Secretary, in consultation
with the National Organic Standards Board and the Secretary of Health and
Human Services, has determined to permit the word "organic" to appear on the
ingredient listing panel to describe those ingredients that are organically
produced in accordance with this title.
Reference §2106 COMPLIANCE REQUIREMENTS. (c), (1) and (2) for Category 1 and 2
labeling as noted above.
His memo follows:
>--------
>FROM STEVE HARPER TO THE PROCESSING COMMITTEE
>
>Date: Fri, 13 Nov 1998 17:15:40 -0800
>
>Please review the following request for comment which will be placed in
the NOSB section of the NOP home page. I have done a little wordsmithing,
adding some background information which makes it more understandable to
our audience. Please contact me regarding any changes which may it even
more understandable by Nov. 18 if possible. I will then submit it to Toni
at NOP for posting on the web. Thanks.
>
> NATIONAL ORGANIC STANDARDS BOARD
>Interdisciplinary Taskforce on Processing and Materials Criteria
>10/28/98
>
>REQUEST FOR COMMENT
>
>
>CRITERIA FOR THE ACCEPTANCE OF MATERIALS USED IN PROCESSING
>
>The NOSB Interdisciplinary Taskforce on Processing and Materials Criteria
is requesting comment from all interested parties regarding the Criteria
for the Acceptance of Materials Used in Processing. Comments should be
sent via e-mail to HYPERLINK mailto:toni-strother@usda.gov _
> or faxed to (202) 205-7808. Comments should be submitted by January 15,
1999.
>
>Background
>
>The NOSB has, in the past, evaluated a number of materials in the
development of the National List of Materials for Organic Processing and
the subsequent recommendation to the Secretary of the USDA. Evaluations
were conducted by the Technical Advisory Panel (TAP) and were based on the
criteria listed in OFPA Section 2119(m)(1-7) and Section 2118(c). While
these criteria provided some basis for evaluation, they were most
appropriate for evaluation of agricultural production inputs and not
specifically developed for evaluation of processing materials. The NOSB,
therefore, feels it is pertinent at this time to develop criteria
(including refining criteria already provided in the OFPA) which are more
appropriate to the evaluation of materials for processing. The following
criteria were derived by Kim Burton and Joan Gussow from lists and
suggestions provided by OMRI, IFOAM, David Gould and others in the organic
industry. The taskforce welcomes your comments pertaining to the
development of criteria more appropriate to processing and will consider
them in our recommendations.
>
>Note: The current NOSB policy and Recommendation to USDA is that certain
reviewed and approved synthetic materials are acceptable in processed foods
labeled as organic foods.
OFMA comments:
As stated and documented above no synthetics are allowed to contact or be an
ingredient in "organically produced" products, Category 1 as described in
these comments. This NOSB approach is illegal under OFPA and should be
dropped from Recommendation.
>There remains some controversy within the Organic
Industry whether the OFPA specifically allows the use of synthetic
materials in processed organic foods and many feel that there is a need for
further clarification regarding this issue. If synthetic ingredients are
permitted by law, then the following criteria apply to them as well.
>
>Criteria
>
>A SYNTHETIC PROCESSING AID OR ADJUVANT may be used if;
>
> 1. An equivalent substance cannot be produced from a natural source and
has no substitutes that are organic ingredients.
> 2. Its manufacture, use and disposal does not contaminate the environment.
> 3. If the nutritional quality of the food is maintained and the material
itself or its breakdown products do not have any adverse effect on human
health.
> 4. It is not a preservative or used only to recreate/improve flavors,
colors, textures, or nutritive value lost during processing except in the
latter case as required by law.
> 5. It is Generally Recognized as Safe (GRAS) by FDA when used in
accordance with Good Manufacturing Practices (GMP), and contains no
residues of heavy metals or other contaminants in excess of (5%) of the
tolerances established by FDA.
> 6. It is compatible with the principles of organic handling.
>AND
> 7. There is no other way to produce a similar product without its use
and it is used in the minimum quantity required to achieve the process.
>
>Note: The Taskforce considered having as an additional criterion that the
substance not be a product of Genetic Engineering. It was decided,
however, that such a prohibition should apply to all substances used in the
production and processing of organic food and hence would be covered
elsewhere in the rules.
>-----------
>
>In response to this memo, I suggested one change. It had seemed to me
from the beginning that we had a legal problem with permitting any
synthetics in processing, because the law seemed to say pretty clearly that
none were allowed. (Kathleen Merrigan confirms that was how the law was
written--at the instigation of the processors themselves). Since processing
synthetics were disallowed, the law, obviously, contained no criteria for
deciding which synthetics could be used. The original NOSB faced with the
fact that things like baking soda and baking powder were "synthetics",
apparently used as a criteria to approve them, "essentiality."
OFMA comments:
Both baking soda and baking powder have been and are available as natural, but
not organically produced products. The natural product, but non-synthetic
substance should be petitioned, reviewed and recommended if acceptable for
inclusion on the National List. Synthetic analogs of the natural products are
not allowed under OFPA. Logic indicates that businesses supplying substances
consistent with OFPA will never flourish if businesses supplying substances
inconsistent to OFPA are allowed to include their products in "organically
produced" products. If synthetic substances are needed for use in products
that include "organically produced" products, there are Category 2 and
Category 3 "made with organic ingredients" labeling for such products.
>That is, a
synthetic was approved if it was essential to the production of a product.
As had become clear, that was a leaky seive, and a legal hell, since the
USDA recognized that the first time a material was refused they could be
taken to court.
>
>When our Subcommittee began its work and put out our first request for
comment on possible criteria, I was unaware that the OFPA (at least
according to some readers of the law), contains a route that allows
synthetics--namely labeling them "Made with Organic Ingredients." Several
people who wrote me told me about that clause. Like everything else, this
interpretation is controversial, and in the eyes of the processing
industry, such a label is undesirable.
>
>In light of all this, I suggested one change in Steve's memo, shown in
caps in the following:
>----------
>Note: The current NOSB policy and Recommendation to USDA is that certain
reviewed and approved synthetic materials are acceptable in processed foods
labeled as organic foods. There remains some controversy within the Organic
Industry whether the OFPA specifically allows the use of synthetic
materials in processed organic foods OR ONLY IN FOODS LABELED "MADE WITH
ORGANIC INGREDIENTS" and many feel that there is a need for further
clarification regarding this issue. If synthetic ingredients are permitted
by law, then the following criteria apply to them as well.
>----------
>This change was not to be. Indeed, the final version was posted with the
entire phrase italicized above dropped out.
>
>The public is presumably supposed to comment on things posted for
comment--that's where most of the 280,000 comments that helped us came from
after all! But it is not widely understood (except perhaps by processors)
that synthetic materials are allowed by law in foods labeled " made with
organic ingredients," so industry does have an alternative. If nothing is
said about the controversy or about the fact that synthetics can be used
in foods labeled "made with organic ingredients," those not informed about
the issue will believe their only choice is to bar synthetics entirely, or
break/bend the law.
OFMA comments:
In conformance to OFPA synthetic substances are barred from "organically
produced" processed food products and are allowed to contact or be in "made
with organic ingredient" processed food products.
>
>When the Processing Committee took this up at our last conference call,
these concerns were overridden, and no hint of "controversy" was added
back to the posted memo.
>
>Since I believe that actual controversies need to be faced and dealt with,
not swept under the rug, I am disappointed by this outcome and would
appreciate hearing from all who agree or disagree. Thanks.
>
>
>
I was also asked to write you something about the "handlers" issue. There
is a decided problem with knowing what to do about the retailing of organic
foods. The activities that make up "handling" are specified in the law,and
if a retailer is an organic "handler," s/he must be certified. The problem
is that where the rubber hits the road, the decisions are very difficult.
Is someone who breaks open a box of organic apples and stacks it up a
"handler?" If s/he breaks open two boxes of different kinds of organic
apples and mixes them?
OFMA comments:
The above sequence, provided all the apples are "organically produced" does
not meet the requirements triggering mandatory certification of a handling
operation as organic. The produce stocker opening boxes is not processing,
packaging (Unless they do so, whereby the handling operation must be
certified.) or storing products. "And" is the keyword in (10) indicating both
(A) and (B) must be done to trigger mandatory organic certification.
Section 2103 (10) HANDLING OPERATION. The term "handling operation" means
any operation or portion of an operation (except final retailers of
agricultural products that do not process agricultural products) that (A)
receives or otherwise acquires agricultural products; and (B.) processes,
packages or stores such products.
>Presumably s/he is a handler if the apples are cut
up for an organic salad bar.
OFMA comments:
Once an apple is cut, it is being processed per the OFPA definition and
organic certification, as a "handling operation" is mandatory. Both
requirements Section 2103(10)(A) and (B) have been met.
(17) PROCESSING. The term "processing" means cooking, baking, heating,
drying, mixing, grinding, churning, separating, extracting, cutting,
fermenting, eviscerating, preserving, dehydrating, freezing, or otherwise
manufacturing, and includes the packaging, canning, jarring, or otherwise
enclosing food in a container.
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