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!

Kansas_Summer_Wheat_and_Storm_PanoramaThe 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,

Continue Reading Land in Transition:  A “New” Certification Option? 

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the requirements for calculating the percent of organic ingredients differently,” the USDA recently published its draft guidance “Calculating the Percentage of Organic Ingredients in Multi-Ingredient Products (NOP 5037).”  This draft guidance seeks to clarify section 205.302 of the organic regulations, which has apparently been inconsistently applied by certifiers.

Some things to note from a first read of the draft guidance:

  • The draft guidance clarifies that, in the case of a multi-ingredient product, a “100% organic” final product is only possible if ALL of the multi-ingredient ingredients (I guess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.

Continue Reading Open for Comment: Draft Guidance on Organic Product Calculations

Sunset ImageOn 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

AgreementA judge I very much respect once told me that a successful mediation is one in which the dispute gets settled and while no one leaves happy, everyone can look themselves in the mirror the next morning and be glad that the dispute is over.  He makes a good point. In litigation, two problematic things happen: (1) when the dust settles at the end of a trial or hearing, there is a clear winner and a clear loser; and (2) the people invested in the fight don’t get to decide who wins and who loses. Continue Reading Mediation of NOP Disputes

D.C._Court_of_AppealsIn 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

Doh“I never made a mistake in my life; at least, never one that I couldn’t explain away afterwards.”
― Rudyard KiplingUnder The Deodars

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


the_usda_organic_seal_articleThe USDA organic regulations state that the term “organic” can only be used on the label of a product that is produced or handled by a certified operation (again, the usual exceptions apply).  Getting this organic certification, though, can be a tedious, costly, and burdensome endeavor and many food companies simply can’t make the “jump” to organic without a large investment of equipment, time, and money.  Because of this, our clients often ask whether there is a way to label a product as “organic” without going through the “hassle” of certification?  In a word:  Yes.

Co-packing (also sometimes known as “private labeling”) is a common practice in the food industry.  A co-packer produces and packages food for its clients—to their specifications and with their name on the label.  Often, a label does not even indicate that the product was produced by a co-packer, and the average consumer wouldn’t necessarily know (or care).  When a food product label identifies the entity responsible for the product on the information panel with a phrase such as “manufactured for…” or “distributed by…,” this signals a co-packaging situation.

The organic regulations permit co-packing, provided that the manufacturer follows the organic regulations.  So, how does it work?

Continue Reading Co-Packing: An Alternate Route to the Organic Marketplace

Pesticide SprayerHusch Blackwell partner Gene Summerlin will be speaking at the American Agricultural Law Association‘s Annual Educational Symposium on October 19-21, 2014 in Albuquerque, New Mexico. He will be speaking about organic agricultural certification and contamination by spray drift. Gene co-chairs the firm’s Sustainable and Organic Agriculture practice group.

the_usda_organic_seal_articleFinancial assistance for the cost of organic certification is available for many organic producers, processors and handlers.  Under the 2014 Farm Bill, cost share and assistance programs are available through fiscal year 2018. As stated by the USDA, “organic certification is a vital part of ensuring that consumers are confident in the products they buy” and that those products “meet USDA’s organic requirements.” See more here.