Comments on the USDA proposed rule on the National Organic Program



CONSUMERS
UNION



Comments on Docket No. TMD-00-02-PR


US Department of Agriculture

National Organic Program



June 9, 2000



OVERVIEW


Consumers Union provides the comments below on USDA’s proposed
rule: National Organic Program [Docket No. TMD-00-02-PR]
published in the 65 Federal Register 13512, March 8, 2000, which
implements the OFPA. Consumers Union commends USDA for this proposed
rule, which aligns closely to consumer expectations of the term
“organic.” The proposed regulations are in general, far more
comprehensive than the original proposed rule in 1997 and embody the
decisions and guidance of the National Organic Standards Board
(NOSB). The proposed rule includes the implementation of the
National List whereby every substance listed has met with the
approval of the NOSB. This materials list will continue to remain
under the guidance of the NOSB.


However, we do have some concerns that should be taken into
consideration before the final rule is promulgated. These issues are
directly related to consumer expectations of what defines an organic
product including the use of antibiotics in crop production, manure
application, temporary variances, and percent organic content issues.
A strong and meaningful set of standards must be upheld so consumers
will not be misled.


CATEGORICAL EXCLUSIONS


The categorical exclusions below should be permanent and not
subject to future reevaluation on a case by case basis.


1. Genetic engineering


Consumers Union supports the explicit prohibition on genetically
engineered organisms (GEOs), including derivatives and products of
GEOs, used in organic production including prohibition on seeds,
annual seedlings, plant stock, pest control substances and
ingredients produced with excluded methods.


2. Irradiation and 3. Sewage sludge


Consumers Unions supports the explicit prohibition on the use of
sewer sludge or irradiation in all products labeled as organic.


3. Rendered animal protein for animal feed


Consumers Unions supports the explicit prohibition on feeding
organic livestock any poultry or mammalian slaughter by-products. We
also support the current provision that prohibits feeding organic
livestock with manure, formulas containing urea, and plastic pellets
for roughage.


GENERAL ISSUES IN DEFINING ORGANIC AND THE NATIONAL
LIST

The proposed rule allows individuals to petition the NOSB to
review materials to be added or deleted from the National List.
Although this is within the scope of the NOSB recommendations, the
NOSB goes further to recommend that a technical review process be
used to develop additions or subtractions to the list while petitions
can be considered at any time. Consumers Union believes that the
NOSB recommendations, not adopted by this proposed rule, would
provide a more scientifically sound basis for making decisions with
regard to the National List and thus protect the consumer more
effectively.


1. Synthetic additives


Consumers Union supports the proposed rule’s adoption of the
National List under the guidance of the NOSB. However the OFPA
mandates itemization of each synthetic substance on the National List
by specific use or application. This has not been uniformly applied
in the proposed rule nor is there any mention of this provision for
future additions or changes to the National List. This appears to be
a in violation of the OFPA and should be revised for the final
rule.


2. Synthetic inert ingredients


Consumers Union supports the USDA adoption of the OFPA meaning of
synthetic inert ingredients as only in reference to pesticide
formulations. We agree that all synthetic inerts must be approved by
the NOSB and added to the National List. Further, we support the
proposed rule’s position that explicitly prohibits EPA List 1
ingredients and requires that EPA List 2 and List 3 ingredients meet
with the approval of the NOSB in order to be added to the National
List. Although there are no restrictions placed on EPA List 4
ingredients unless specifically prohibited on the National List,
Consumers Union believes that all EPA List 4 ingredients should be
subject to review by the NOSB and approved ingredients should also be
added to the National List. Since the OFPA is explicit about NOSB
review of all synthetic substances, approved EPA List 4 ingredients
should not be an exception.


Since USDA has restricted the definition of “inert ingredient” to
pesticide formulations, all other formulations such as fertilizers
and foliar sprays would theoretically have to use NOSB approved
synthetics that are on the National List. However, the new proposal
is lax in the regulation of EPA List 4 ingredients in all
formulations and therefore these ingredients could also be used
outside the scope of pesticide formulations and thus synthetic
inerts.


3. Antibiotics used in production


Consumers Union supports the explicit prohibition of antibiotics
in organic livestock production. The National List as it stands
however, does not include any antibiotics, approved or prohibited,
for use on crop production. This distinction blurs the meaning of
organic by setting different standards for meat than for crop
production and is potentially misleading to the consumer.


We have additional concerns regarding the use of antibiotics on
crop production. In light of the policy written for organic
livestock production prohibiting the use of antibiotics, and that
consumer expectation for “organically produced” does not include the
use of antibiotics, we question whether antibiotics should be allowed
in crop production. We are particularly concerned with the growing
problem of antibiotic resistance and therefore oppose all unnecessary
use of antibiotics.


4. Organic feed requirement


Consumers Union supports the requirement of 100% organic feed in
organic livestock production. In the event of emergency situations
outlined as “drought, flood, and other natural disasters” “exemptions
for emergency feed must be authorized by the Administrator through
procedures for establishing temporary variances.” The section on
temporary variances only loosely describes the meaning of natural
disasters; states that time limits should be set by the certifying
agent; and that those limits can be extended at the discretion of the
certifying agent. Consumers Union believes that this provision is
too lax and would allow for cases where organically raised livestock
could be fed non-organic feed for an indefinite period of time,
perhaps even for the entire life of the animal. In addition, this
provision could cause variability in time limits even within the same
geographic area. We urge USDA to establish a ceiling of time that
can be applied to exemptions during emergency situations. Without
this reference, there are no real time limits that must be met and
consumers could be misled by organic labeling.


5. Manure


Subpart C of the proposed rule discusses Resource Management for
Production and Handling. As the proposed rule stands, manure from
any source is acceptable and raw manure can be applied to crops
directly, provided harvest occurs after a set period of time. We
believe that this is unacceptable for a number of reasons. “Any
source” of manure includes all non-organic farming operations
including concentrated animal feeding operations (CAFOs) which raise
hogs, chickens, and cattle in densely populated and confined
conditions. The incidence of death, disease, antibiotic and heavy
metal use is high on these farms. This raises serious questions
regarding the safety of manure obtained from non-organic and confined
sources.


The Southwest Regional Office of Consumers Union (SWRO) along with
The Sierra Club, has just published a report on the impact of animal
factories on public health and can be accessed at
www.consumersunion.org. This document cites a 1999 report from the
Texas Natural Resource and Conservation Commission that confirms the
routine addition of heavy metals to poultry diet including arsenic,
copper, zinc, manganese, selenium and cobalt. The report also
confirms that these metals pass through the animals and can be
measured in feces. Furthermore, some of these metals such as copper
are concentrated in the manure and may actually be toxic to crops
over a long application period. Arsenic is explicitly prohibited in
section 205.602 of the National List. For these reasons alone, raw
manure from any source does not meet USDA or consumer expectation of
“organic” production.


Industrial animal producers also use low-level antibiotics in
animal feed to promote growth. This practice has already been banned
in Europe and some studies have found that such use results in the
spread of antibiotic resistant bacteria. Crowded conditions lead to
increased disease, death and drug use resulting in manure that
carries a proportional load of pathogens and antibiotics, which could
lead to increased antibiotic resistant bacteria. Once again,
consumers do not expect that antibiotics or their residues will be
routinely applied to organic crops.


The European Union allows manure produced only from organically
produced livestock to be used in organic crop production. In order
for the U.S. producers to export to the EU, they would have to change
the type of manure used and most likely, allocate separate land for
exported products since there may be antibiotic and metal residues
from using non-organic manure. For all of these reasons, Consumers
Union strongly opposes the use of manure from any source.


TESTING, LABELING AND CERTIFICATION

1. Prohibition against misleading labeling


Consumers Union continues to support the provision of the OFPA
that protects consumers from label claims that directly or indirectly
imply that the product was produced using organic methods except when
produced in accordance with the OFPA. Labeling must be reliably
transparent and truthful and should not imply the food is organic, or
relatively more organic, when it is not.


The USDA has made considerable strides to increase the meaning
behind the term organic by creating a thoughtful, analytical and
dynamic decision making process under the guidance of the NOSB and
the National List. In this way, the definition of organic has been
standardized. However certain proposals undermine the credibility of
the label.


As the proposed rule stands, there are four labeling categories:
100% organic, organic (95% or more organic content), made with
organic (specific) ingredients (50-95% organic content, up to 3
ingredients may be listed on front panel), and those with less than
50% organic content (which can only list organic ingredients on the
back panel). Consumers Union is concerned that the first two
categories could easily mislead consumers. Organic has been regarded
by the OFPA and most of this proposed rule as a 100%. We believe
that this should not be undermined in the labeling process. To be
labeled organic a product should actually be 100% organic. If the
product is 95% organic, it should be qualified on the packaging as
95% organic. Products that are only 95% organic but labeled as
“organic” will be misleading to consumers and deviate from the goals
of the OFPA and the proposed rule.


Consumers could also be misled by the labeling in a product that
is “made with (specific) organic ingredients.” It is not clear from
the proposal how a consumer would know if those ingredients were 100%
organic or 95% organic. Similarly with the last product category,
that with less than 50% organic content, the organic ingredients
listed on the back panel would not represent the organic percentage
of each organic ingredient.


Under the new proposed rule, private certifying agents may only
certify organic products to the NOP standards or the higher standards
of the state. Since private certifying agents cannot certify to any
other standard, we believe that the labeling of organic products
should reflect one standard. As the rule stands, 100% organic, and
organic products can be labeled with either the USDA seal or the
private certifying agent seal on the front display. In order to
minimize consumer confusion while giving credence to private
certification, we urge USDA to adopt one main seal and mandate the
use of that seal. If a private certifying agent has certified the
product, they could place their organization name on the seal.
Alternatively, private certifying agents could have a statement such
as “this product was certified organic by XX,” and place a small copy
of the logo after the statement. In this way, consumers will have a
clear understanding of the standards behind a certain product.


In category three, “made with organic (specified) ingredients,”
the proposed rule would allow a final product to contain the private
certifying agent seal but not the USDA seal. In this way, the
consumer can be misled into thinking that a product is 100% or 95%
organic. We believe that since this proposed rule has set standards
on handling, the only seal that should be used is a USDA seal. This
seal could deviate slightly by including the word “handled” somewhere
in or near the seal and again include a statement and small logo if a
private certifying agent has done the certification.


2. Equivalency versus accreditation for foreign programs


As the proposed rule stands, only foreign governments with
established national organic programs are eligible for USDA / NOP
equivalency. Consumers Union believes that all foreign organic
programs including those established by governments should and must
apply for accreditation and meet all standards for the USDA National
Organic Program. We believe that equivalency is not a rigorous
approach that ensures imported organic products meet the USDA-NOP
standards and consumer expectations of “organic.” A declaration of
“equivalency” for a foreign government program could result in
products entering the country which do not meet the same standards as
domestically grown organic products, but which compete with them in
the marketplace. This would be unfair to domestic producers, and
highly misleading to consumers. The USDA should insure that
equivalency is not used in this way.


3. Exemptions to certification


At this time, grocery stores (i.e. retailers) and restaurants are
exempt from certification. However, many retailers are planning to
or already have their own organic processed food lines such as bread.
For example, a bakery that sells its products to other retail
establishments is considered a processor and must be certified.
However, under this proposed rule, a bakery that makes and sells its
own product (and does not sell to other retailers) would be exempt
from certification. This appears to be in violation of the OFPA,
which only authorizes exemptions for retailers who do not process.
Consumers Union strongly urges the USDA to explicitly state that
retailers producing their own line of organic products, who are
therefore processors, are not exempt from certification. The NOSB,
CODEX, and the EU all require this type of certification. In
addition, retailers who purchase certified organic products either
domestically or abroad should also be required to place a placard
near the product that denotes the appropriate organic certification
seal.


4. Prohibition against more stringent requirements by some
certifying agents


Consumers Union continues to support the ability of state and
private certifying agents to certify organic products at higher
standards that those set by the NOP. We continue to believe that the
standards set by the rule should be a floor and not a ceiling. We
therefore support the provision allowing states to apply for a
“special program” status. However, the proposal qualifies USDA
approval of these programs by saying that a State’s more restrictive
requirements, “are likely to cover specific production or handling
practices such as more restricted use of National List substances or
farming practices to address a State or area’s particular
environmental conditions.” We urge USDA to allow states to use more
restrictive practices if they so choose. We believe that the
environmental conditions are inherently improved based on more
restrictions, i.e. less additives and less chemicals. States setting
more stringent standards ought to be welcomed by USDA and not subject
to a long arduous process for approval. It is not clear form the
language of the proposal if USDA will easily approve more stringent
standards.


As such, we believe that states that use more restrictive
standards should use a variation of the main USDA seal, which
includes the acronym of the state such as “USDA-CA.” And again the
same provisions for private certifying agents in the state should
follow the labeling scheme described above.


5. Conflict of interest


Consumers Union supports the new proposal’s expansion of the term
“commercial interest,” to apply to the operation, marketing, or
distribution of its products. We also support the inclusion of
“immediate family members” within the scope of conflicts of interest.


However, based on our previous comments, CU remains concerned that
there are no requirements for accreditation that would prevent a
former certifying agent/employee/inspector/family member from
obtaining ownership interest in an operation that he or she had just
certified. Under this rule, a certifying
agent/employee/inspector/family member could certify an operation as
organic, terminate their employment, and subsequently obtain a
commercial interest in the certified farm. USDA has responded to
this by explaining that safeguards already exist which prevent a
post-certification conflict of interest because, “while associated
with the certifying agent, personnel are required to disclose any
offer of employment they have received and not immediately refused.”
CU believes that this is not an adequate provision to prevent
post-certification conflicts of interest nor does it apply to family
members who may not be directly employed by the certification
agent.


6. Pesticide residue testing


The USDA has responded to several comments regarding the frequency
of pesticide residue testing citing only those that were concerned
that testing done “no less than every five years” was too
burdensome.


The proposed rule calls for a certifying agent to test a certified
farm or handling operation “not less frequently than every five
years.” This requirement is an inadequate foundation from which
consumers can be assured that organic foods have not been grown with
the use of synthetic pesticides.


Consumers Union tested organic and conventionally grown produce
for the presence of pesticide residue and published the results in
the January 1998 edition of Consumer Reports. We were surprised to
find in our investigation that 25% of the organic foods we tested
contained traces of pesticide not sanctioned for use by any private
or state organic certification program. The residues we found on
organically labeled foods may have resulted from inadvertent drift or
carry-over in the soil, or from direct application.


We support the provision in the new proposed rule that oversees
contamination of crops including drift by removing these products
from being labeled as organic. However, this provision cannot
effectively be implemented unless routine pesticide testing occurs at
least on an annual or bi-annual basis. We also restate our position
that the frequency of compliance testing be based on the volume of
organic production. Although sliding certification fee structures
are included in this proposal based on production volume, there are
no explicit requirements with regard to pesticide residue testing.





May 22, 2000


Keith Jones

Program Manager

National Organic Program

USDA – AMS – TMP – NOP

Room 2945 – South, Ag. Stop 0275

POB 96456

Washington D.C. 20090-6456


Attn. Docket No. TMD-00-02-PR


Dear Mr. Jones,


I am pleased to transmit to you the comments of Consumers Union,
publisher of Consumer Reports, on the USDA proposed rule on
the National Organic Program.


Sincerely,


Urvashi Rangan

Research Associate


Enc.