It took 10 years for 38 synthetic substances to make their way into products
labeled “USDA Organic”, when the Ag Approps amendments kick
in, that number could leap to over 500 with the stroke of the Secretary’s
pen.
Below are the parts of the Organic Food Production Act relating to organic
labeling with the new amendments in bold.
It is products that currently are labeled “USDA Organic” that
are affected. Under USDA National Organic Program regulations (below,
after the code), these products were only required to contain 95% organic
ingredients and they could contain certain synthetic ingredients on the
National List. In Harvey, a recent 1st Circuit case, the court ruled that
these regulations would have to be changed to bring them into compliance
with the OFPA which specifically forbade anyone to “add any synthetic
ingredient during the processing or any postharvest handling of the product”
and, for the handling of organic agricultural products, required each
National List item be one that is “non-synthetic but is not organically
produced.”
Now, with the new Ag Approps changes to the OFPA, the law forbids one
to “add any synthetic ingredient NOT APPEARING ON THE NATIONAL
LIST during the processing or any postharvest handling of the product”
and it strikes the requirement for the handling of organic agricultural
products that a National List item be one that is “non-synthetic
but is not organically produced.” In this respect, the changes restore
the pre-Harvey status quo (the 38 synthetic ingredients).
However, there is one way in which the new OFPA amendments on synthetics
go far beyond “pre-Harvey”:
(1) They radically alter the way synthetic ingredients are added to the
List.
For the first time, the Secretary will have the power to expedite petitions
for access to the list of substances that are commercially unavailable
in organic form. Right now there are 38 synthetic substances on the National
List that have been carefully reviewed and approved by the National Organic
Standards Board over the past ten years. Eight more synthetic substances
have been reviewed and approved by the NOSB and are awaiting USDA authority
to be placed on the National List. The industry has requested that 517
more synthetic substances be approved. In all likelihood, this new power
granted to the Secretary will be the opening of the floodgate to these
hundreds of synthetic ingredients being allowed in products labeled “USDA
Organic.”
7 U.S.C.A. § 6510(a)(1)
(a) In general
For a handling operation to be certified under this chapter, each person
on such handling operation shall not, with respect to any agricultural
product covered by this chapter--
(1) add any synthetic ingredient NOT APPEARING ON THE NATIONAL LIST
during the processing or any postharvest handling of the product;
7 U.S.C.A. § 6517(c)(1)(B)
(c) Guidelines for prohibitions or exemptions