The Requirements and Definitions for Organic Foods
Perhaps no word since the term “liberal” has caused such consternation in meaning as the label “organic.” In fact, it was a free-wheeling scattered approach in dealing with the word that gave birth to the meticulously detailed legal definition propagated by the U.S. Department of Agriculture as the National Organic Program, or NOP. Many critics say it is an overly meticulous reaction, with impenetrable legalese and unreasonable compliance requirements. The criticism in not unfounded, as the NOP’s so-called “final rule” fills more than 500 pages, contains dizzying subparts and decrees no less than 107 definitions of such previously understood concepts as “manure.”
Just ask a small scale farmer like Mary Anne Carpenter of Coastal Organics who grows amazing varieties of tomatoes that are coveted by upscale restaurants such as Melisse in Santa Monica, California. Carpenter has always utilized organic methods, but her limited staff and resources prohibit her from complying with the statutorily imposed documentation and inspection requirements. The burden of document processing is “horrendous,” says Carpenter. Therefore, she is barred from calling her tomatoes “certified organic” even though they are raised organically.
But like electronic cattle fences, the NOP became a necessary evil to corral the wandering application of the term organic. Prior to the NOP (and to some extent, even now), opportunistic marketers appropriated the magic word for economic advantage. Many producers whose process did not qualify as organic unscrupulously exploited the term while fleecing impressionable consumers. After codification in December 2000, farmers found themselves having to comply with strict rules in order to be entitled to organic boasting rights.
Calling the rules strict may be an understatement. The NOP requirements are so inclusive and so specific, they even dictate that open air composting materials must be maintained “at a temperature between 131 F and 170 F for 15 days, during which time, the materials must be turned a minimum of five times.” If the application of such regulations appears clinically compulsive, the foundational intent is admirable. The USDA explains, “This national program will facilitate domestic and international marketing of fresh and processed food that is organically produced and assure consumers that such products meet consistent, uniform standards.”
The NOP imposes legal, technical and social responsibilities upon organic producers. Farmers may not use prohibited substances for 3 years immediately preceding harvest. Soil fertility and nutrients must be managed through rotation, a practice of alternating the pattern or sequence of growth in successive years so that crops of the same species are not grown repeatedly without interruption on the same field, and cover crops, which are raised specifically to be spaded back into the soil. Weed problems may be controlled through mulching with biodegradable materials, mowing, livestock grazing, hand weeding, flame, heat, electricity or plastic mulch (provided it is removed from the field at the end of the growing or harvest season). Livestock must be under continuous organic management from the last third of their gestation period or hatching. Dairy animals must be under continuous organic management no later than 1 year prior to the production of milk to be sold. To qualify as organic, no animal drugs, antibiotics or growth hormones may be used. It is the producer’s obligation to provide conditions which allow for exercise, freedom of movement and what the NOP refers to as “reduction of stress” appropriate to the species of livestock. Of primary concern are the promotion of the animal’s welfare and the minimization of pain. The producer must not withhold medical treatment from a sick animal in an effort to preserve its organic status.
Contrary to popular belief, the organic process is not always wholly “natural.” While there is a National List of synthetic substances which are forbidden in organics, some of the exceptions include alcohols, ethanol, isopropanol, chlorine materials, sodium hypochlorite, copper sulfate, hydrogen peroxide, ozone gas, peracetic acid, ammonium carbonate, boric acid, sulfur dioxide, streptomycin (for blight control in apples and pears only), tetracycline, humic acids, lignin sulfonate and sodium silicate. Giving further impression of the exceptions seeming to swallow the rule, the statute also lists some of the allowable nonagricultural ingredients as bentonite, calcium chloride, carageenan, glucono delta-lactone, kaolin, magnesium sulfate, perlite, potassium chloride, tartaric acid, cellulose, glycerides, lecithin, pectin and xanthan gum. If such substances can be present in certified organic products, it gives consumers pause to consider what they are ingesting from non-organic foods.
The NOP establishes a hierarchy in organic labeling. The top level of product designation is “100% organic.” It means what it says. All the ingredients in the product qualify as completely organic. The next rung of the ladder is simply “organic.” This means that not less than 95% of the product by weight or volume was organically produced in either the raw or processed form. The third level says “made with organic [âÂ?¦]” designating a particular ingredient, such as grapes, or a specific food group, such as poultry. This indicates that at least 70% of the product by weight or volume was organically produced. For example, wine containing sulfites can be labeled “made with organic grapes.” In this category, no more than 3 organic ingredients or food groups may be utilized. Products with less than 70% organically produced ingredients are prohibited from displaying the coveted USDA Organic seal on their packaging or advertising.
For a farmer to maintain organic certification, it is not enough to comply with NOP guidelines. The farmer must establish, implement and update annually an organic production or handling system that is submitted to an accredited certifying agent. According to the statute, on-site inspections must be permitted, giving the agents “complete access.” Such inspections will be annual and perhaps even more frequent. The inspections may be announced or unannounced at the discretion of the certifying agent. For unannounced inspections, an authorized representative of the farm does not have to be present. The inspector can collect and test soil, water, waste matter, seeds, plant tissue and processed samples. Some producers liken this process to having the UN weapons inspectors descend upon your property. Farmers must maintain records applicable to organic operations for at least 5 years and allow review and copying to determine compliance. Farmers have to notify their certifying agent of any changes to the operation. This might include the drifting of any prohibited substances onto the property of the organic operation. It is possible that a shift in the wind during a neighboring farm’s crop dusting season will trigger the organic grower’s reporting obligation. Last but not least, applicable annual fees must be paid. The initial application fee is $500 and additional fees may be assessed for travel and per diem costs of inspectors. In the course of codification discussions, it was suggested that the USDA should fully fund organic certification fees because “the industry is relatively young and composed of a large number of small, low-resource businesses.” However, the suggestion was denied on the basis that the NOP is primarily a user-fee-based Federal program and that it was outside its authority to subsidize producers.
While the NOP sets a national standard for organic production, each state is empowered to implement its own program, or SOP (State Organic Program), which may contain even more restrictive requirements for organic agriculture produced and handled within that state. The enabling language for such programs is a prime example of the Alice in Wonderland quality of the statute as a whole: “A State may have an SOP but not have a State certifying agent. A State may have a State certifying agent but no SOP. Finally, a State may have an SOP and a State certifying agent.” This is the kind of legislative thicket that can make lawyers smile and farmers howl. But in the long run, consumers are better off for it.
