The second proposed organic rule violates OFPA as stated below. Implementing
this violation would open the door to every kind of synthetic substance being
used in processed organic foods and represents the potential to undermine
trust between organic customers and organic farmers. Moreover, because FDA
has no consistent program of determining that derivatives of GMOs are NOT
used in "minor ingredients" processing aids and food additives, there is a
window of opportunity for such use in processed organic product.
I strongly urge you to read the entire rule and critique my analysis as well
as USDA.
Best, Eric
From: Eric Kindberg, certified organic farmer
USDA is proposing to allow synthetic substances to contact or be part of
"organically produced" processed foods and fibers. Most damaging to organic
integrity would be the proposed allowance under the USDA organic program of
the 32 categories (each category containing multitudes of substances) found
in 21CFR Ch 1, Food And Drug Adminstration section 170.3. This listing
includes and opens for NOSB consideration every possible chemical presently
used in conventional processed food including synthetic colorings and color
adjuncts, flavorings agents and adjuncts, fumigants, enzymes, processing
aids, solvents and vehicles, surface-finishing agents, synhergists,
texturizers. surface-activ agents, stabilzers and thickeners, sequestrants,
propellants, aerating agents, and gases, pH control agents, oxidizers and
reducing agents, nutritive sweetners, non-nutritive sweetners, lubricatns and
release agents, leavening agents, humectants, flour treating agents flavor
enhancers, firming agents, emulsifiers, and emulsifier salts, drying agents,
curing and pickling agents, dough strengtheners, antioxzidants, antimicrobial
agents, antcaking agents and free flow agents.
You can see USDA's proposal to violate OFPA in the first file you download
from the AMS website: "definitions." This issue having been one of the
primier issues regarding the first proposed rule and now staring consumers,
farmers and handlers in the face right at the beginning of the second public
comment review provides great concern for th future of a sustainable organic
marketplace.
OFPA, the House-Senate Conferee, and Senate reports provide clear statements
that no synthetic substance is to contact "organically produced" food in post
harvest handling.
Here are the two statements from the "definitions" proposed rule file on
their website indicating USDA is proposing to violate OFPA.
Should the organic consumer, farming and handling community immediately make
clear to USDA that such a "standard" would stimulate distrust in "organically
produced" products?
In conformance to OFPA, when synthetic substances contact or a part of a food
product that contains "organically produced" ingredients, the correct
labeling is "made with organically produced" ingredients.
(16) A commenter recommended adding the word, "synthetic," immediately
preceding the word, "substances," in the second sentence of the definition of
"system of organic farming and handling." We disagree with this suggestion
because "substances" as used in this definition could be synthetic or
nonsynthetic. A few commenters requested deletion of the word, "extraneous,"
as a modifier of "synthetic additives" in the definition of "system of
organic farming and handling." The commenters stated that use of the word,
"extraneous," implied that synthetic additives can be used in organic
processed products. Synthetics may be used in processed products if the
substance is included on the National List. Additionally, the word,
"extraneous," modifies the word, "processing," in the definition, and we
consider use of extraneous processing to be inconsistent with organic
handling. For these reasons, we have not removed the word, "extraneous," from
the definition. We have, however, amended the term, "system of organic
farming and handling," by deleting "farming" and inserting "production." The
definition for the term, "system of organic production and handling," is
unchanged. We have taken this action to make the term consistent with the
language of this proposal. Additional information on this issue can be found
at subpart C, Production and Handling (General), Changes Requested But Not
Made, item 1.
(2) We have amended the definition of "allowed synthetic" by replacing "for
use in organic farming" with "for use in organic production, or handling."
This correction was necessary because the National List includes synthetic
substances used in organic production and handling.
Legal reasoning:
OFPA
§2105 NATIONAL STANDARDS FOR ORGANIC PRODUCTION. To be sold or labeled as an
organically produced agricultural product under this title agricultural
product shall
(1) have been produced and handled without the use of synthetic chemicals,
except as otherwise provided in this title;
§2107 GENERAL REQUIREMENTS.
(b) DISCRETIONARY REQUIREMENTS. An organic certification program established
under this title may
(1) provide for the certification of an entire farm or handling operation or
specific fields of a farm or parts of a handling operation if
(C) appropriate physical facilities, machinery, and management practices are
established to prevent the possibility of a mixing of organic and nonorganic
products or a penetration of prohibited chemicals or other substances on the
certified area; 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;
Senate Committee Report with the OFPA bill:
Finally, the National List is designed to cover ingredients used in
processing. The bill allows that up to five percent of processed food labeled
"organically produced" may contain non-synthetic ingredients which are not
organically produced if those ingredients are included on the National List.
The five percent figure was arrived at after consulting with various organic
food processors as the amount of flexibility necessary in processed food. The
Committee intends that the guideline for processed food ingredients on the
National List be that some ingredients are difficult or impossible to obtain.
An example might be certain spices that are unavailable at this time from an
organic farm It may also include items that are not technically organically
produced such as yeast.
Senate-House Conferee Report at passage of OFPA:
(9) Contents of National List
The Senate bill provides that the National List may include prohibitions on
natural substances which otherwise would be allowed under this title but
which the National Organic Standards Board and the Secretary determine to be
harmful to human health or the environment and inconsistent with organic
farming. The Senate bill provides further that the National List may
include exemptions for substances otherwise prohibited but which the National
Organic Standards Board and the Secretary determine are harmless to human
health and the environment, are necessary because of the unavailability of
wholly natural substitute products, and are determined to be consistent with
organic farming practices. Such exemptions, however must meet one of the
following three criteria:
(1) the substance is used in production and contains a synthetic active
ingredient in the following categories: copper and sulfur compounds; toxins
derived from bacteria; pheromones,
Page 1179
detergents; horticultural oils; treated seed; fish emulsions; vitamins and
minerals, livestock parasiticides and medicines; and production aids
including netting, tree wraps and seals, insect traps, sticky barriers, row
covers, and equipment cleansers;
(2) the substance contains synthetic inert ingredients; or
(3) the substance ; is used in processing and is non-synthetic but not
organically produced. (Section 1625) The House amendment contains a similar
provision with three differences:
(1) there is no allowance for production aids on the National List
(2) there is no allowance for products with synthetic inert ingredients on
the National List; and
(3) the Secretary is required to consult with the Secretary of Health and
Human Services and the Administrator of EPA regarding the contents of the
National List. (Section 1495Q)
The Conference substitute adopts the House provision with an amendment that
adds production aids to the category of synthetic I active ingredients and
the category of synthetic inert ingredients not of toxicological concern to
the Administrator of EPA as possible exemptions on the National List. The
Managers note that in the future it may be necessary to further develop a
list of categories for processed food exemptions and therefore encourage the
Secretary, working with the National Organic Standards Board, to recommend
such a list to the Congress as soon as practicable in order to facilitate
implementation of the national standards by October 1, 1993
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