This blogger was recently interviewed for a great story in DTN/Progressive Farmer regarding changes to the USDA’s organic programs. You can read the article here. No doubt, transitioning land to organic will remain a hot topic as the conventional ag markets continue to be challenging for operators!
The required three-year transition to convert a conventional field to organic can be a deterrent for some would-be organic farmers. Those 36 long, long months often put the farmer in the worst of both worlds: the land must be managed organically, but the crop must be marketed as conventional.
The higher cost of organic products might lead consumers to reach for the cheaper conventional version, even if they would prefer to buy organic. We don’t have to know all of the reasons why organic products are more expensive than their conventional counterparts; basic economics tells us that demand far exceeds supply.
Considering the two sides of the organic market mentioned above, and that the mission of the USDA’s Agricultural Marketing Service (AMS) is to create marketing opportunities for agricultural products and ensure the quality and availability of wholesome food, it’s not surprising that the USDA is rolling out a formalized transitional organic option, called the National Certified Transitional Program (NCTP). The first step is for certifying agencies get accredited to be able to offer the new, standardized transitional certification. According to AMS’s January 11 news release,
Recognizing that “certifying agents have interpreted the requirements for calculating the percent of organic ingredients differently,” the USDA recently published its draft guidance “Calculating the Percentage of Organic Ingredients in Multi-Ingredient Products (NOP 5037).” This draft guidance seeks to clarify section 205.302 of the organic regulations, which has apparently been inconsistently applied by certifiers.
Some things to note from a first read of the draft guidance:
- The draft guidance clarifies that, in the case of a multi-ingredient product, a “100% organic” final product is only possible if ALL of the multi-ingredient ingredients (I guess you can call them “sub ingredients”) are confirmed to be 100% organic.
- Keep in mind that: AN ORGANIC LABELING CATEGORY IS NOT THE SAME AS PERCENTAGE OF ORGANIC INGREDIENTS (except, of course, in the “100% organic” labeling category) and the “Organic” labeling category is only guaranteed as 95% organic content.
- So, when determining percentage of organic of product to be certified, you must account for exact organic content in each multi-ingredient ingredient used in the final product.
- If you cannot account for the exact organic content, you must default to the 95% or 70% labeling category for multi-ingredient ingredients.
A three-judge panel returned mixed-news on Friday, September 30, for sellers of food labeled as “natural.” A putative class action lawsuit against Dole Packaged Foods for deceptively labeling their fruit containing synthetic citric and ascorbic acid as “All Natural Fruit” had been dismissed in favor of Dole on summary judgment by the United States District Court for the Northern District of California. The District Court had also decertified the class action.
On appeal, a panel of the Ninth Circuit determined that a jury could find that a reasonable consumer would see Dole’s description as misleading. This was based on the plaintiff’s testimony that he was deceived; an informal policy of the FDA defining “natural” to mean nothing artificial or synthetic had been included; and FDA warning letters previously sent to various food sellers for describing food as “natural” while containing synthetic citric acid. Accordingly, the panel found it was error for the District Court to grant summary judgment to Dole.
However, the panel affirmed the District Court’s decertification of the class action. The correct measure of damages in this circumstance would be the “price premium” of the labels, that is, the additional price paid in misunderstanding the fruit to contain no artificial or synthetic ingredients. Yet, the plaintiff presented no evidence as to how this premium could be calculated with proof in common to a class of consumers. Presumably, individualized evidence would have to be presented to demonstrate how much reliance a consumer placed on the “natural” labeling, and what this description would be worth to them. The plaintiff’s individual claim may proceed, but only pursuit of injunctive relief would be allowed on behalf of a class of consumers.
This reversal by a Federal Circuit Court adds to the pileup of differing views in the “all natural” labeling space, which is sure to continue until the FDA and USDA provide certainty.
“Got Milk” and “Beef It’s What’s for Dinner” are just two of the now iconic advertising slogans which resulted from USDA mandatory checkoff programs. Following the Organic Trade Association’s proposal to the USDA, a mandatory checkoff may be coming to the organic industry (a copy of the OTA’s proposal to the USDA is available here). “The organic industry in America is thriving and maturing, but it is at a critical juncture,” Laura Batcha, CEO and executive director of OTA, said in a statement. The meaning of USDA’s organic seal is not clear to many consumers and organic production is “not keeping pace with the robust demand,” Bacha said. “An organic check-off program would give organic stakeholders the opportunity to collectively invest in research, build domestic supply and communicate the value of the organic brand to advance the entire industry to a new level.” Continue Reading Got Organic? Organic Checkoff Program Moving Forward
On April 7, 2015, several organic stakeholders filed suit in federal court alleging the USDA violated the Administrative Procedures Act when it altered how non-organic substances remain approved for use in organic programs. The change effects how synthetic and non-organic substances are removed from the National List of Allowed and Prohibited Substances – which identifies approved synthetic and natural substances which can be used in organic agriculture because organic counterparts are not available. Originally, substances on the National List would “sunset” or be taken off the list after 5 years unless two-thirds of the National Organic Standards Board (“NOSB”) voted to keep the substances on the approved list. The NOSB is made up of a 15 member board of producers, consumers, environmental advisers, retailers and certifiers who advise the Secretary of Agriculture and the National Organic Program on matters related to organic agriculture and food policy. Continue Reading Lawsuit Challenges USDA Changes to Sunset Provisions of Organic Rules
Here is part 2 of Melody Meyer’s interview with USDA Organic Policy Advisor Betsy Rakola via Organic Matters. (Part 1 is available here). Melody is the Vice President of Policy and Industry Relations for United Natural Foods, a leading independent national distributor of natural, organic and specialty foods and related products. Thanks, Melody for allowing us to repost!
What challenges do you hope to address for the organic community?
Products that are locally produced and not certified organic continue to be an issue. We are devising new strategies to provide outreach and information, especially at farmers markets, to producers to ensure they know the organic requirements. This is where the NOP sees the majority of complaints on non-compliance – producers making the organic claim without the certification. The end goal is to uphold the integrity of the organic seal, and make it easier for small producers to come certificated organic.
We need to increase the number of certified organic operations because, as you know, domestic supply issues are acute right now. The supplies aren’t there to meet the current demand and through growth we can provide more opportunities and better options for American consumers looking for a vast array of organic products year-round. We have an internal goal to increase the number of certified organic operations. We currently have 18,500 certified entities and the market is expected to grow 12-15% per year, so perhaps we mimic that growth. This of course doesn’t capture the growth of new organic acres. The producer survey can help us bridge that knowledge gap so USDA can help organic production grow. Continue Reading An Interview with Betsy Rakola: A focus on transitioning farmers and organic acreage. Part 2
The following interview with USDA Organic Policy Advisor Betsy Rakola comes via Melody Meyer’s wonderful blog, Organic Matters. Melody is the Vice President of Policy and Industry Relations for United Natural Foods, a leading independent national distributor of natural, organic and specialty foods and related products. Thanks, Melody for allowing us to repost!
Just before the MOSES conference I was lucky enough to catch Betsy Rakola, USDA Organic Policy Advisor, for a chat. It was exciting because Betsy took the role just last August. She also serves as the chair of USDA’s Organic Working Group. This position was created by Secretary Tom Vilsack two years ago, and it’s the first of its kind at USDA. Now it is a permanent position so the focus on organic is here to stay. Betsy is no stranger to the National Organic Program and her commitment to growing organic agriculture was evident in every answer.
Tell me about your position and what do you hope to achieve in it?
I advise the office of the Secretary of Agriculture at the USDA so the department is up to date on the issues and opportunities for organic agriculture. I also coordinate the USDA Organic Working Group to make sure that organic farmers are represented in all of our programs and services across the department! It’s a big job to work with all the interagency teams.
I bring the organic perspective to broader discussions, such as how it relates to small and beginning farmers and ranchers or our local and regional sectors. I am working to implement many of the organic provisions in the 2014 Farm Bill that support this $35 billion industry!
I worked to develop the website where we now have a one-stop-shop with a dedicated organic portal that we hope has information useful to everybody. For instance you will find information on research, programs for universities and an Organic Literacy Initiative. The latter is an educational program that over 30,000 USDA employees have already completed! This Organic 101 and 201 course explains the basics on what organic is and what it means. Even the consumer or general public can access the course, and learn more about what the organic label means. We especially want farmers and ranchers to have the resources they need so we can fulfill the USDA’s strategic goal to increase the number of certified operations!
Tell me more about the Organic Working Group.
The Organic Working Group is an interagency group that has five teams based on five themes; data, research, regulatory reciprocity (which means getting in sync and reducing paperwork), training and increasing the organic sector. Secretary Vilsack outlined these themes in his 2013 guidance to the USDA on organic agriculture, and I bring these areas of focus together at the USDA. This assures that every agency is working to support organic farmers, ranchers, and handlers. Continue Reading An Interview with Betsy Rakola: A focus on transitioning farmers and organic acreage. Part 1
In our last post, we discussed the procedural requirements necessary to pursue an appeal of an adverse action taken by the NOP, a State organic program, or an organic certification agency. To greatly over simplify, the procedural review of an appeal looks at two primary issues:
- Does the appeal itself satisfy the NOP’s regulatory process; and
- Was the adverse action appealed from taken in compliance with the NOP’s requirements.
Put another way, procedural review doesn’t consider whether the adverse action was right or wrong, but rather focuses on whether the action was taken in accordance with the proper steps, and whether the appellant followed the appropriate steps to appeal that action. The NOP’s substantive review of an appeal examines whether the rules were correctly applied; that is, whether the adverse action was an appropriate application of the NOP’s rules and regulations. Continue Reading Substantive Review of NOP Appeals and the Resolution of Appeals
Everyone makes mistakes, right? Even the National Organic Program (“NOP”), a state official in a State organic program, or a private organic certification agency can misinterpret a rule or regulation resulting in harm to an organic producer, processor or manufacturer. So, what should you do if that happens to you? Although we all normally cringe when we hear, “Hi, I’m from the government and I’m here to help,” in this case Congress and the USDA have provided a navigable procedure to appeal any action taken by the NOP’s Deputy Administrator, a State organic program, or a certifying agent under the Organic Foods Production Act. 7 U.S.C. § 6520(a); 7 C.F.R. § 205.680. That said, there are serious traps for the unwary and unlike horseshoes and hand grenades, just being close to compliance doesn’t count here. In this article, we will discuss the procedural aspects of the NOP appeals process. In subsequent posts, we will examine how NOP appeals are reviewed substantively and the use of mediation and settlement agreements with respect to NOP disputes.
If the NOP, a State official or your certification agency has taken action that adversely affects you or that you believe is inconsistent with the NOP’s organic certification program, you have a right to appeal that decision. The appeal will be reviewed, heard and decided by persons not involved in the underlying action that forms the basis for the appeal. 7 C.F.R. § 205.680(e). Continue Reading Appeal from an Adverse Action under the National Organic Program – a Procedural Primer