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On September 16th the National Organic Program (NOP) issued a Federal register notice changing the process that is used to decide whether prohibited substances can continue to be used in organic production (the Sunset process). This change took effect immediately on September 17 with no allowance for public comment about the change in policy.
The Organic Foods Production Act of 1990 (OFPA) Provides for Sunset Review under SEC. 2118 U.S.C. 6517 NATIONAL LIST. (e) SUNSET PROVISION.-“No exemption or prohibition contained in the National List shall be valid unless the National Organic Standards Board (NOSB) has reviewed such exemption or prohibition as provided in this section within 5 years of such exemption or prohibition being adopted or reviewed and the Secretary has renewed such exemption or prohibition.” It clearly states that no exemption or prohibition contained in the National List of products allowed in organic production shall be valid unless the National Organic Standards Board has reviewed and renewed the exemptions or prohibitions. From 2005 to the present the NOP policy indicated that the NOSB needed to act to keep synthetics on the National List at the time of their Sunset; without action by the NOSB, those exemptions and prohibitions would expire. The new policy adopted by the NOP effectively allows a material to be reviewed by the NOSB and its sub-committees at the time of sunset. The substance would remain on the list unless there is a two-thirds majority to remove it. This significantly lowers the bar for removing synthetics from organic.
This decision by NOP provoked protests from producers, consumers and environmentalists but found support from some industry representatives, most notably the new President of the Organic Trade Association and VP Policy and Industry Relations United Natural Foods (UNFI), Melody Meyer.
Below is a statement by consumer and environmental groups (Joint Statement of Consumers Union, Food and Water Watch, Beyond Pesticides and Center for Food Safety), a Blog post by Melody Meyer, (“Stop the lies and get behind your National Organic Program”), followed by a letter by Jim Riddle, past Chair of the NOSB and one of the leaders of the organic community, who resigned from the OTA as a result of Melody Meyer’s blog post, NOP’s recent action, and OTA’s recent attempt to ‘push through a new tax (check-off) on all certified organic operations to fund an organic promotion program’.
We print these opinions in their entirety, as this is an important issue that will affect the future integrity of the organic label. Read on!
JOINT STATEMENT OF
Consumers Union, Food And Water Watch, Beyond Pesticides And Center for Food Safety
U.S. Department of Agriculture Guts National Organic Law;
Circumvents Public Process
Decision makes it easier to
continue use of artificial
ingredients and substances, undermining integrity of
In a move decried by consumer and environmental groups as severely weakening the meaning of the organic label, the U.S. Department of Agriculture announced this week that the agency had changed the process for exempting otherwise prohibited substances (such as synthetics) in food that carries the “organic” or “made with organic” label. No public comment period was provided for the changes to this policy, which had been in place since 2005.
Under the federal organic law and prior to Friday’s announcement, there was a controlled process for allowing the use of substances not normally permitted in organic production because of extenuating circumstances. These exemptions were supposed to be made for a five-year period, in order to encourage the development of natural (or organic) alternatives. The exemptions were required by law to expire, known as “sunset,” unless they were reinstated by a two-thirds “decisive” majority vote of the National Organic Standards Board (NOSB) and included a public review. This is no longer the case.
The USDA’s recent decision now puts the burden of identifying exempted materials for removal largely onto environmentalists and consumers. Under the new policy, an exempt material could be permitted indefinitely unless a two-thirds majority of the NOSB votes to remove an exempted (synthetic) substance from the list. The new policy allows USDA to relist exemptions for synthetic materials without the recommendation of the independent board and outside of public view, as required by current law.
“The USDA’s decision minimizes all incentives for creating organic, natural alternative ingredients and lowers the standard for what consumers can expect behind the organic label. Allowing the USDA to automatically relist materials without the recommendation of the NOSB erodes the Board’s legal authority over materials decisions; a key to consumer trust in the organic label. The fact that the agency made this decision without any public input only adds to the violation felt by watchdog groups and consumers alike,” the groups said.
“Potentially allowing an indefinite listing of non-natural ingredients and requiring a super-majority vote to retire a substance after five years undermines the spirit of the law for how materials head into “sunset” or retirement. It is unfair to producers trying to produce a truly organic product and it is unfair to consumers trying to make meaningful purchasing decisions. Simply put, this lowers the bar for much of the organic market. We believe the USDA must reverse course and we intend to mount a fierce campaign to hold the agency accountable to the millions of Americans who expect more from the government-and the organic label.”
  The Organic Foods Production Act 7 USC 6517 € Sunset Provision – No exemption or prohibition contained in the National List shall be valid unless the National Organic Standards Board has reviewed such exemption or prohibition as provided in this section within 5 years of such exemption or prohibition being adopted or reviewed and the Secretary has renewed such exemption or prohibition.
MELODY MEYER’S MESSAGE:
‘Stop the lies and get behind your National Organic Program’
Posted October 1, 2013,
on Melody Meyer’s personal blog (OTA Board President and VP Policy and Industry Relations, United Natural Foods)
I read in a media piece a few weeks ago headlines decrying that organic law had been gutted. The inflammatory article went on to claim the USDA was minimizing incentives for creating organic ingredients and the organic standards were thereby being diluted. In taking a closer look at the National Organic Program’s (NOP) announcement and understanding the regulations, processes and procedures of the NOP, it seems this article is way off kilter.
In 2001 the first US organic standards were written into law after years of discussion, discovery and scientific review. These organic standards are designed to allow most natural substances in organic farming while prohibiting most synthetic substances. The “National List”–part of the organic regulations–spells out the exceptions to this basic rule and the non-organic substances allowed in processed organic products. In order to enhance the regulatory process the law requires that these materials be reviewed every 5 years.
This review process called “sunset” requires the National Organic Standards Board (NOSB) to do technical reviews of the material to assure new science does not reveal any negative impact on human health, the environment or other criteria under the Organic Foods Production Act. It also asks for public comments to assure that the material is still needed for organic production or that another, more suitable, material is not available. If the material is still needed and deemed not harmful the material is approved for another 5 years. After the NOSB has completed this rigorous “sunset” review, the NOP must renew or remove the substances on the National List to complete the process.
The other way this list of materials can change is if an entity or person petitions the NOP for the addition or deletion of a material. Once again the material must go through the same rigorous testing and vetting process before it is approved.
In preparation for a new round of sunset reviews by the NOSB, the National Organic Program (NOP) explored options for improving the process. Upon reviewing the Organic Food Protection Act, the NOP determined that the “sunset provision” and “decisive votes” sections of the Organic Food Production Act needed to be aligned.
This change actually increases consistency by requiring that two-thirds of NOSB members must support any change to the National List for it to be recommended as a change to the USDA —whether during sunset or the petition process. This means that the Board will need a two-thirds decisive vote to remove an existing listing, rather than a two-thirds decisive vote to retain an existing listing. This change only ensures consistency across all NOSB recommendations related to the National List. In most circles consistency in protocol is an improvement.
The NOP memo reaffirmed that the NOSB and NOP will follow the process to meet the sunset provision of the Organic Foods Production Act while also achieving the goals of a transparent sunset review process with increased opportunities for public engagement through a streamlined administration of the National List.
Ironically, the article I spoke of earlier incorrectly stated that the change was “Allowing the USDA to automatically relist materials without the recommendation of the NOSB.” This is just plain false.
All that’s changed is it now takes two thirds majority to vote to list and two-thirds to delist. Elsewhere the article cites the “lack of public input on this process.” This statement is, again, outrageously bogus. There will not only still be comment from the public regarding sunset, but now there will be TWO periods of NOSB meetings, actually doubling the opportunity for comments to be taken on these items.
I personally know many of the staff at the National Organic Program and they are all deeply committed to the success and integrity of the organic seal and the regulatory process. If you don’t already know Miles McEvoy, Deputy Administrator of the NOP, read my Blog Interview and
you will discover his lifelong commitment and passion for organic.
Going forward, when someone writes an article or says that the NOP is harming organic, I urge you to question the accusations. Take a deeper look at the language and the intention of what the NOP is saying or doing. Ask an organic authority like the Organic Trade Association (OTA) or reach out to the NOP directly. They are always available to answer questions and concerns. The NOP staff is there to help everyone involved to understand, participate in and abide by the organic regulations.
Let’s cheer the program for the gusto and vigor they deliver to our growing industry! Let’s gut the organic lies!
FROM JIM RIDDLE,
past Chair of the NOSB and longtime organic producer and educator, October 11, 2013
To the OTA Board of Directors:
I have been involved in the organic sector since the early 1980’s as a producer, inspector, trainer, policy specialist, outreach coordinator, grant program administrator, activist and eater— as well as serving on the National Organic Standards Board. I have been a member of the Organic Trade Association since the early 1990’s, was co-author of OTA’s American Organic Standards and wrote OTA’s comments on the USDA’s second proposed organic rule.
OTA’s new Board President, Melody Meyer, recently wrote and released a divisive, inaccurate and accusatory article entitled, “Stop the lies and get behind your National Organic Program.”
In her article, Ms. Meyer displayed an alarming lack of understanding of the Organic Foods Production Act (OFPA) and the National Organic Program (NOP) Final Rule, as well as disrespect for public interest groups who have been part of the organic movement from the beginning.
For starters, Ms. Meyer stated, “In 2001 the first US organic standards were written into law after years of discussion, discovery and scientific review.” This statement is incorrect. The law, OFPA, was passed in 1990. The NOP Final Rule (which is a regulation, not a law) was released in December 2000 and took effect in October 2002.
In discussing allowed and prohibited substances on the National List, Ms. Meyer overlooks the fact that OFPA only allows the use of synthetic and non-organic substances as “exemptions.” Those exemptions are required by OFPA to sunset, or end, after 5 years, unless the allowances are reviewed and renewed by the NOSB, which has statutory authority over the content of the National List.
Ms. Meyer states, “All that’s changed is it now takes two thirds majority to vote to list and two-thirds to delist. “
That is a huge change, and one that does not comply with the OFPA’s clear language regarding the powers of the NOSB to determine substances and annotations on the National List; OFPA’s sunset provisions; and the need for any action of the Board to be based on a 2/3 majority “decisive vote.”
Despite the NOP’s new directive, OFPA (the law) has not changed. Substances sunset from the National List unless they are reviewed and renewed by a decisive 2/3 vote of the NOSB. In order for listings to be legally valid, they need to be
renewed following an affirmative vote of the Board. Any substance renewed by a less than 2/3 affirmative vote will certainly be subject to legal challenge.
Ms. Meyer goes on to state, “Elsewhere the article cites the “lack of public input on this process.” This statement is, again, outrageously bogus.
The NOP’s new directive was issued without any discussion with the Board at a public meeting. There was no vote of the Board to support the directive, and no opportunity for members of the public to offer input to the NOSB or the NOP on the directive.
This situation is analogous to the 4 “retracted directives” that were issued by the NOP in 2004, when I served on the NOSB. Those directives would have: a) allowed the labeling as “organic” of products not covered by NOP standards; b) allowed the use of antibiotics in dairy cattle to be used in organic production; c) allowed the use of fish meal in livestock feed; and d) allowed the use of pesticides with unknown inert ingredients. They were issued with no NOSB consultation or public comment.
After public outcry, USDA Sec. Anne Veneman intervened, ordered the directives withdrawn, and ordered staff to work in close consultation with the NOSB on future draft rules, policies and directives. It appears that those lessons have been forgotten. Consulting with the NOSB on implementing OFPA is required by law.
Finally, Ms. Meyer suggests that persons with concerns “reach out to the NOP directly. They are always available to answer questions and concerns.” Not! The NOP’s website is not even operational during the shutdown!
Due to the divisiveness and inaccuracy of the new OTA President’s comments, I have decided to allow my OTA membership to expire.
Though I disagreed, I have maintained my OTA membership as OTA has tried to push through a new tax (checkoff) on all certified organic operations to fund an organic promotion program, instead of looking for creative ways to capture support dollars from retailers and consumers who benefit from organic production.
I have maintained my OTA membership, even though I have seen my trade association place its lobbying strength and resources to pass an organic checkoff referendum while programs that benefit organic producers, such as the national organic certification cost share and the organic research and extension initiative, have gone unfunded.
I have remained a member when I have seen OTA advocate for the allowance of questionable artificial (i.e. synthetic) additives used in organic food production and processing.
But the positions taken and attitude displayed by the OTA’s new president are too much. I cannot, in good conscience, renew my OTA membership.
Organic Independents LLP, Winona, MN
Posted: to Policy in the News on Mon, Nov 18, 2013
Updated: Tue, Oct 16, 2018