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Congress Restores National Organic Program Provisions

Nov 14, 2005

The agricultural appropriations bill recently passed by Congress included an important provision that helps restore the original U.S. Department of Agriculture (USDA) National Organic Program's (NOP) rules, a move supported by IDFA. Congress was asked to take up this issue as a result of a June 2005 federal court decision in the case of Harvey v. Johanns, which had severely limited the types and levels of non-organic agricultural ingredients that could be added to foods labeled with USDA's organic seal.

It was estimated that if Congress had not acted, more than 90% of the multi-ingredient organic foods in the marketplace, including many organic dairy products, would have lost USDA's organic labeling status. IDFA joined an industry coalition, led by the Organic Trade Association, that lobbied Congress to pass an emergency procedures provision to rectify this problem.

Specifically, the court decision called into question technical inconsistencies between the Organic Food Protection Act (OFPA), passed as part of the 1990 Farm Bill, and the current USDA NOP standards, which were implemented in October 2002. In the lawsuit, Harvey asked the court to eliminate the NOP provisions that created a national list that "allowed synthetics to be added during the processing of organic food." These provisions resulted in a list of 36 synthetic substances allowed in processed food products under 7 CFR§205.606 and §205.600(b), "allowing a synthetic processing aide or adjuvant."

The court decision in Harvey's favor meant that only five substances would be allowed for use in organic foods -- namely corn starch, water-extracted gums, kelp when used as a thickener and dietary supplement, unbleached lecithin, and high methoxy pectin -- and blocked the use of such common ingredients as carbon dioxide, vitamins and minerals. The ruling also required the revision of rules relied upon by small dairy farmers who are transitioning to organic, with the unintended consequences of inflicting significantly higher costs on those operations. Also, the decision disallowed the USDA's procedures implemented by the secretary's organic-certifying agents that recognized the commercial unavailability of some organic agricultural products.

After the court decision was issued, USDA set an effective date of two years (June 9, 2007) on these actions due to the potential for confusion and to enable an orderly transition to comply with the district court's order. This time delay allowed Congress to take action to amend the OFPA.

Specifically, the emergency procedures language regarding this issue in the 2005 agricultural appropriations bill is as follows;


(6) Expedited petitions for commercially available organic products constituting less than 5 percent organically processed product. The secretary may develop emergency procedures for designating agricultural products that are commercially unavailable in organic form for placement on the National List for a period of time not to exceed 12 months. This means that USDA may undertake a notice and comment rulemaking process to develop procedures to define "commercial availability" and "emergency." It is believed that this action will be used in truly disaster-type situations, such as in times of crop failure or other market-disrupting events. For example, organic vanilla is a crop grown in Madagascar, which has been subject to major storms that have restricted the availability of organic vanilla for at least a year. Vanilla is widely used in processed organic products, but only in small amounts. (B) Transition Guideline - crops and forage from land included in the organic system plan of a dairy farm that is in the third year of organic management may be consumed by the dairy animals of the farm during the 12 month period immediately prior to the sale of organic milk and milk products. This means that flexibility would be allowed for feed and replacement heifers used in organic dairy farms, as dictated by the organic systems plan.

In addition, a conference report related to the bill language directs the USDA secretary to undertake the following actions:


(1) As soon as practicable conduct an evaluation of any impacts of the court decision in Harvey v. Johanns; and

(2) no later than 30 days submit to Congress a report that:


(A) describes the results of the evaluation; (B) includes a determination by the secretary on whether restoring the National Organic Program, as in effect on the day before the court decision would adversely affect organic farmers, organic food processors and consumers; (C) analyze issues regarding the use of synthetic ingredients in processing and handling; (D) analyze the utility of expedited petitions for commercially unavailable agricultural products; and (E) consider the use of crops and forage included in the organic systems plan for dairy farms that are in the third year of organic management.

For more information on the organic standards, contact Cary Frye at, 202/220-3543.


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