Small Producers Sue Uncle Sam Over What Can Be Called “Organic”
My name is Stephanie Zonis, and welcome to Organic Matter for September 2005.
Organic Lawsuits
It isn’t every day that someone sues a federal agency, yet it’s happened at least twice within the last three years or so. There have been two cases of this I know about, both dealing with organic regulations. While the more recent case has not yet gone to trial, the older case had its beginnings mere days after the then-new NOP (National Organic Program) was implemented by the USDA in the fall of 2002. Organic blueberry farmer Arthur Harvey, a resident of Maine, claimed that the new USDA regulations regarding foods labeled “organic” overstepped a number of canons of the OFPA (Organic Foods Protection Act) of 1990. In short, the NOP standards were too lax. The suit was multi-faceted, as one might expect. Mr. Harvey lost his case but appealed. In January of this year, Mr. Harvey prevailed in appellate court on several counts of his original suit, counts that might have enormous implications for manufacturers of what are now considered organic products.
I could be wrong about this, but my belief is that when most people see a multiple-ingredient food product labeled “organic,” they tend to assume it contains entirely organic ingredients. But that might not be accurate. As matters stand now, multiple-ingredient products containing 95% or more organic ingredients are eligible for the green-and-white “organic” seal of the USDA. But some ingredients, it’s claimed, aren’t readily available as organics. The USDA allows manufacturers to use up to 5% non-organic or synthetic materials, but they can still claim that their products are organic. To some, this dilutes the ideals of organics and allows companies to cash in on the current organic boom (the organic industry has expanded at an annual rate of some 20% in the past handful of years). Some want or need to avoid synthetic ingredients, as well, either due to allergic reactions, health problems, or suspected health problems.
The appellate court ruled for Mr. Harvey regarding dairy cow feeding during a herd’s one-year conversion time to organic status (originally, the USDA had allowed up to 20% of a herd’s feed to be non-organic in the first nine months of this year). The court also agreed with Mr. Harvey in disallowing any use of synthetic ingredients in products labeled “organic.” Finally, the USDA may no longer grant blanket exemptions for products said to be unavailable in organic form. Instead, the National Organic Standards Board must review these exemptions, and the producer’s attempt to find, or source, organic materials must be verified.
At first glance, this doesn’t seem like a big deal to a consumer. There is an excellent possibility, however, that the latter two will prove quite significant to product manufacturers. There are a large number of food companies, at least, who use the current 5% synthetic/non-organic loopholes. If Mr. Harvey prevails, these manufacturers would not be able to label their products as “organic.” Instead, they’d be forced to use the labeling “made with organic ingredients,” a different USDA category that indicates a product is made from at least 70% organic ingredients. Obviously, this would be less appealing to some consumers, and these manufacturers are afraid of losing their niche in an ever-growing market for organic products. Organizations such as Beyond Pesticides, the Center for Food Safety, and the National Organic Coalition have petitioned the USDA with corrective measures for what have become, by virtue of this court ruling, illegalities; they are asking the USDA to complete all regulatory changes by early June of 2006.
But what about non-food products? There are plenty of organic non-food products around; will they be affected by new regulations? Good question, but right now no one has an answer.
On June 17 of this year, Dr. Bronner’s Magic Soaps/Sun Dog’s Magic, in conjunction with the Organic Consumers Association (OCA), filed a lawsuit against the USDA. Dr. Bronner’s Magic Soaps/Sun Dog’s Magic (which, from now on, will be referred to as “Dr. Bronner’s” for purposes of brevity) manufactures a line of personal care products that includes soaps, lotions, and lip balms. In its original 2002 rulings on organics, the USDA had claimed that manufacturers of both food products and non-food items (including but not limited to pet food, personal care products, cosmetics, and over-the-counter medications) containing agricultural products would be eligible to apply for USDA/NOP certification. However, in April of 2004, the USDA suddenly reversed the 2002 decision, claiming that it had no regulatory authority over nonagricultural products such as personal care items, body care products, cosmetics, etc., and that manufacturers of such items would there not be eligible to seek NOP certification. Perhaps the strangest part of this whole situation is that the NOP’s own definition of “agricultural,” issued in May of 2002, recognizes that “agricultural” products or commodities are not used only for food! In the lawsuit, the plaintiffs credibly cite the example of certified organic olive oil, declaring that it is not rendered suddenly nonorganic when used in a massage oil rather than a salad dressing.
The outrage over the USDA’s 2004 statement was considerable, enough so that then-Secretary of Agriculture Ann Veneman announced that she was directing the USDA to rescind the statement; the 2002 regulations would remain in effect. Unfortunately, this never happened. To shorten a lengthy story, the USDA continued to demand that manufacturers of non-food items that had been certified organic under the NOP program discontinue their packaging with the green-and-white USDA/NOP seal by October 21 of this year. Failure to comply could result in harsh penalties.
In the months between the original 2002 issuance of regulations and April of 2004, a number of small companies that produce personal care items/body care items/cosmetics invested heavily in sourcing organic ingredients for their products, consulting experts, installing and implementing necessary equipment for production and control for organic certification, and, not least, paying the fees required for organic certification, which ain’t cheap. Dr. Bronner’s was one of these companies. Certified organic ingredients are also not inexpensive, sometimes costing twice what their conventionally-produced counterparts do. Since 2002, in fact, Dr. Bronner’s claims to have spent more than five million dollars in implementing everything required to have their products certified organic (for starters, the company asserts they must inventory ingredients up to a year at a time to ensure an adequate supply). But if you’re thinking that the company is kicking up a fuss just because they’ve spent all that money, think again.
Yes, economics is a part of the reason for the lawsuit. Dr. Bronner’s and other small manufacturers have spent what are to them large sums of money to obtain or maintain what they view as a competitive edge for their products. Not everyone is willing to go through the rigmarole of having their personal care products certified organic. Sporting the NOP organic seal can make a big difference to an increasing number of consumers willing to pay more for a product they regard as better, both for themselves and the environment. However, following its 2004 abrupt reversal, the USDA did something unusual; the agency did not allow time for a comment period, which is required by law before any new policy is implemented. There was also a “Response” issued by the USDA in April, 2005 to comments the agency had received regarding their 2004 decision. This “Response” appeared to uphold the 2004 decision. Once again, no comment period was provided for. As part of the lawsuit, Dr. Bronner’s therefore maintains that both the 2004 ruling and the 2005 “Response” are invalid and not enforceable. On May 6 of this year, Dr. Bronner’s, via legal channels, sent an inquiry to the NOP Program Manager effectively trying to find out what was happening with the NOP seal and personal care products. A reply was requested by May 31, but none was ever received.
David Bronner is one of the principals of Dr. Bronner’s these days; his father founded the company. To Mr. Bronner, the most important aspect of the suit seems to be the issue of credibility. If the proposed new USDA guidelines go through, Dr. Bronner’s will still be able to label their products as “organic” (albeit not with the green-and-white NOP seal), but there will be no third-party certification, as there is now. Consumers, he says, won’t know that the “organic” on Dr. Bronner’s labels isn’t just another claim. The OCA is very concerned about organic claims, so much so that they have instituted a “Coming Clean” Campaign for personal care products and their manufacturers. According to the plaintiffs in the lawsuit, too many cosmetics/personal care products companies are making fraudulent claims that their products are organic or made with organic ingredients. According to Mr. Bronner, this case will probably drag on for some time, but he likes his chances when the trial eventually comes off. Meantime, for more information, please see: www.drbronner.com or www.organicconsumers.org
The way I see it, this is all about integrity. How much watering down of organic standards and definitions are federal agencies and businesses prepared to accept? In many cases, the answer seems to be a great deal. How much are consumers prepared to accept? Rather less, I’d hope, but I’m convinced that organic claims currently leave a lot of consumers scratching their heads in bewilderment. The people I know who purchase organic foods do so because they believe those foods are better for them and better for the long-term health of the planet. Why, then, would it be acceptable to them that such foods are allowed to contain any synthetic ingredients?
There are conventionally-produced ingredients that have no organic counterparts; should they be allowed? These questions hold true for non-food products, too. I confess I am absolutely baffled by the USDA’s 2004 guideline “makeover.” Countless non-food products contain agricultural ingredients, and this is scarcely a new situation. Given a definition they themselves came up with, the United States Department of Agriculture is now claiming that it has no authority over agricultural products used in non-food items? Beyond doubt, the subject of organics is enormous and enormously complex. We’ll all have to wait a while for the final decisions here, as well as determinations of what they might mean to consumers.
UPDATE! On August 24, one day prior to a deadline to respond to the Dr. Bronner’s/OCA lawsuit, the USDA suddenly reversed itself again. Non-food items containing agricultural products, such as cosmetics, body care products, and pet food, will be allowed to seek NOP organic certification; those with such certification will be able to display the green-and-white “USDA Organic” label. The decision represents a triumph for manufacturers who had spent, or were spending, money and time to make certain their products could legitimately carry a label proclaiming them to be organic.
New or revised rules that are consequences of Arthur Harvey’s lawsuit are still being formulated by the USDA.
Organic Find
For their guts and their determination to uphold diehard organic idealism, this month’s find is Dr. Bronner’s Magic Soaps/Sun Dog’s Magic. I like this company’s commitment to genuine organic ingredients, as opposed to the deceitful practices allegedly employed by some body care products companies. They use recycled materials for packaging where possible. Best of all, you can understand the ingredients they use in their soaps, lotions, and balms; how many personal care products do you know where that’s possible? Besides, if you’re looking for some truly unusual reading material, you need look no further than the labels of their liquid soap. I can’t explain any of what’s written there, but it is truly unusual. And don’t forget about their food product, Gertrude and Bronner’s Magic Alpsnack, with fruits, nuts, and hemp nuts (two of the varieties are also made with fair trade chocolate). Alpsnack is available in five flavors, and all profits go toward hemp advocacy. There’s a tremendous amount of information on their website, www.drbronner.com. You can order products online, but they’re also widely available in natural foods stores.
Dr. Bronner’s organic shampoos and soaps
Sun Dog's Magic organic hand and body lotion
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