“Organic” is a popular term. It is associated with a healthy diet and lifestyle. Quite often, it is also a reason to charge and pay higher prices for the organic labeled products. Many consumers take trust in the label without further inquiry on what it actually means. That trust is reinforced by the government label of the United States Department of Agriculture: “USDA Organic.” Since one branch of the federal government – USDA – put its reputation on the line, it may be useful to pick up on the phrase coined by the former U.S. government leader Mr. Reagan: “trust but verify.” The verification deals with a simple question: how much non-organic (if any) stuff can a producer get away with, and still lawfully label his product “USDA Organic”? The question itself is quite practical. Bad economy and raised consumer expectations, fueled by retail food chain price pressures, put food producers in a tough spot. On one hand, producers would like to make “USDA Organic” label as a part of their goods. While on the other hand, some “USDA Organic” operations are cost prohibitive. Therefore, food producer needs to be keenly aware how to remain profitably organic in the least expensive way.
The inquiry concerns the regulator. USDA’s Agricultural Marketing Service (AMS) maintains National Organic Program (NOP) pursuant to The Organic Foods Production Act of 1990, as amended. 7 U.S.C. 6501 et seq. AMS promulgated regulations, which can be found at 7 C.F.R. Subchapter M, and allow the use of the following labels:
- 100 percent organic
- Organic
- Made with organic (specified ingredients or food group(s))
Before a producer (or anyone else in the marketing chain) can mark its products with any of the above labels, that producer is required to take certain steps in the area of production and handling.
When one examines the regulations, s/he may find many exceptions that allow the use of non-organic substances. The use is permitted in the livestock feeding, crop growth and land management. Regulations provide a laundry list of substances that can be used in “organic” food production. Specifically,
- Producers can use synthetic substances listed under 7 C.F.R. § 205.601.
- Producers can apply crop synthetic substances as a crop nutrient or soil amendment, so long as it is included on the National List of Synthetic Substances allowed for use in organic crop production. 7 C.F.R. § 205.203 .
- Producers can use nonorganic (e.g. genetically modified, synthetically treated) seed when “an equivalent organically produced variety is not commercially available” or under “temporary variance grant.” However, there are exceptions to exceptions (e.g. sprouts) and other strings attached. See 7 C.F.R. § 205.205 for details.
- Weed control methods permit “plastic or other synthetic mulches,” so long as they are “removed from the field at the end of the … harvest season.” 7 C.F.R. § 205.206(c)(6). Additionally, under certain circumstances, producers mya use substances listed on the National List of Synthetic Substances in the pest and weed control. 7 C.F.R. § 205.206(e).
- Non-organic management can be applied to “USDA Organic” labeled poultry during the first two days of poultry’s life. 7 C.F.R. § 205.236.
- Non-organic management can be applied to dairy animals producing “USDA Organic” labeled products so long as these animals have been under organic management for at least one year prior to production of the “USDA Organic” labeled products. This rule is also subject to exceptions. See 7 C.F.R. § 205.236(a)(2).
- Producers may feed livestock with synthetic substances allowed under 7 C.F.R. § 205.603, but subject to certain conditions. 7 C.F.R. § 205.237.
Although these exceptions may cast a shadow on the use of “organic” label, they represent a significant regulatory safety net for consumers. While certain low income producers can get away with certification requirements pursuant to 7 C.F.R. § 205.101(a)(1), certification does provide for a third party certification and compliance review procedure. Certainly, while this looks all right on paper, it does not necessarily translate that way in practice. Nonetheless, it is an important regulatory step. While the food industry, experts, and lawmakers can make the case for what is safe and not safe to consume, it may take generations to find out whether the effects are in fact harmful. By then, it may become too late for consumer to do anything about it.
Additional level of complexity is added through international agreements related to organic production. The United States will recognize organic accreditation from officials in Canada and European Union (to take effect this summer) and permit their use and labels to be sold in the U.S. market. However, this notice from USDA implies that organic products from European Union and Canada are compliant with 7 C.F.R. Subchapter M.
