Regulatory Update

Enforcement of Organic” claims on non-food items

The Organic Trade Association’s (OTA’s) mission is to promote and protect organic with a unifying voice that serves and engages its diverse members from farm to marketplace. Given the prevalence of organic food sales ($39.7 billion in 2015) compared to organic non-food sales ($3.6 billion in 2015) and the make-up of our membership (85% food, 15% non-food), the visibility of our work on food-specific issues tends to take the front stage. However, OTA’s time and resources are actually directed to work that fuels the expansion of domestic and global organic acreage and market opportunities that support ALL certified organic products regardless of their end use. As a trade association, we are about promoting and protecting ORGANIC, period.

OTA’s efforts to promote and protect both the organic food and non-food sectors continue to run up against a critical barrier in the regulatory structure and oversight of the term organic.” Many consumers have come to trust and understand that organic products are certified to strict standards, and that those claims are regulated and enforced by the federal government. However, the U.S. Department of Agriculture’s (USDA) National Organic Program (NOP) does not regulate or enforce organic claims made on certain types of non-food or non-agricultural products that fall outside its scope of enforcement authority, such as textiles, household cleaners, and cosmetics.

In one aisle of the grocery store, agricultural products such as cereal and soup MUST be certified if an organic claim is used on the front display panel of the label. Fraudulent use of the term results in civil penalties. For these products, consumers can trust that the term organic” reflects a codified and transparent set of production and handling standards that are verified through third-party certification and enforced by USDA.

In the next aisle over, products such as dietary supplements, personal care products and textiles MAY utilize organic claims whether they are certified. These products may be NOP certified by virtue of their organic agricultural content. However, certification is not required unless the product uses the USDA Organic seal or makes reference to USDA organic certification. Thus, many of those products can use the term organic, but not the seal. Many other products using the term organic” could never be certified (i.e. salt, water, non-agricultural fertilizers) because they are non-agricultural. In all of these cases, if a product making an organic claim falls outside of NOP’s jurisdiction, it lacks federal oversight and enforcement.

OTA sees this situation as a significant and growing problem because it leaves a major gap in the system, creates unfair competition for companies that choose to get their products certified, and ultimately undermines the organic label as a whole.

OTA takes action

OTA has a long history of advocating for organic standards and federal enforcement of non-food products, and is currently engaged in multiple projects to promote and protect this part of the organic sector. In fact, one of a handful of formal policies adopted by the OTA Board of Directors in 2010 is a position statement that supports mandatory federal regulation of organic labeling claims on personal care products. OTA is also part owner of the Global Organic Textile Standard (GOTS) and advocates for GOTS as THE gold standard of certification for processed textile products. One over-arching effort we’re highly invested in is resolving the lack of enforcement around organic” claims on non-certified non-food products.

NOP has the authority to regulate organic” claims on agricultural products, leaving the non-food (non-agricultural) sector at a loss. The Federal Trade Commission (FTC), under its consumer protection jurisdiction, has authority to act on misleading or fraudulent organic” claims made on products that fall outside of NOP’s purview but does not exercise it because it is uncertain what consumers think when they see the term organic” on non-food products. From FTC’s perspective, it needs to understand what consumers think before it can determine if they are being misled.

In 2014, OTA started meeting regularly with FTC and NOP to urge FTC to exercise its consumer protection authority and take action against fraudulent and misleading use of the term organic” on products outside of NOP’s scope of authority. In response, FTC opened a comment period requesting feedback on plans to conduct research to explore consumer perception of environmental marketing claims such as organic.” The study is intended to enhance FTC’s understanding of how consumers interpret such claims to decide whether to recommend revisions to the FTC’s “Green Guides.”

OTA submitted extensive comments to FTC explaining that there is currently enough information available to inform and support FTC oversight and enforcement of such action today. OTA urged the agency to confer with NOP and develop a draft enforcement policy (open for public comment) on the use of organic” claims, and exercise its consumer protection authority to act on misleading and/or fraudulent use of the term organic.” Despite our efforts and the consumer data we supplied to FTC from OTA’s surveys, FTC determined it needed to conduct its own survey before moving ahead with a policy or revision to its Green Guides.

What’s next?

In early August, FTC released the results of its survey. FTC and USDA will be hosting a roundtable discussion in Washington, D.C., on October 20 to further examine consumer perceptions of organic” claims for non-agricultural products. The roundtable, which OTA will attend, is open to the public, and FTC welcomes written comments as well. The comment period for written comments will remain open until December 1.

OTA has formed a task force to analyze the FTC-USDA survey and shape our comments on how to best address consumer deception and education. The information that FTC and USDA gather should ultimately provide increased understanding on how and when to act on the fraudulent use of the term organic” on products that fall outside of NOP’s scope of authority, and help shape long-awaited revisions to FTC’s Green Guides. Rest assured, OTA will be at the table for each step along the way.

Ensuring organic claims are monitored and enforced for all products is critical to market stability and essential to our members that go the extra distance to make and sell certified organic products. OTA is committed to this work because shoppers need to trust products labeled as organic” whether they are sold in the food aisle or the personal care aisle of a retail outlet. Failure to require certification and enforce the use of the term organic” on all products creates consumer confusion, can be misleading, and can lead to consumers mistrusting the integrity of the word organic.”

Interested in learning more about the issue or in participating in the task force? Contact OTA's Vice President of Regulatory and Technical Affairs, Gwendolyn Wyard.

Regulatory Update

Growing Organic Cotton

The Global Organic Textile Standard’s (GOTS) Technical Committee (I serve as the Technical Committee Representative for North America) is in the process of revising GOTS 4.0 to launch an updated version (GOTS 5.0) in April 2017. The third revision draft will be completed and then reviewed and decided upon at the BioFach Trade Fair in Nuremburg, Germany (February 2017). As an Advisory Council member and stakeholder invited to comment on the revision, OTA submitted comments largely in support of the first draft revision. However, OTA is also urging the Technical Committee to make a revision that will accept USDA-NOP certification of cotton ginning in the United States as equivalent to GOTS certification. Currently, the ginning process must be NOP and GOTS certified although the requirements are the same. OTA’s requested revision will support U.S. production of organic cotton by removing obstacles that result in duplicative certification efforts and unnecessary costs. The second revision will be opened for public comment in September 2016. If you are interested in participating, please let us know.

Expanding organic wool

Organic shepherds must treat infested and sick animals with parasiticides, as the organic regulations prohibit them from withholding treatment to maintain organic status. So, when they must treat sick animals, they are faced with a dilemma: sell that animal and lose desirable genetics, or keep that animal and figure out what to do with non-organic wool. It’s not uncommon for organic sheep producers to have wool piling up in the barn that cannot be sold or labeled as organic.

In response, NOSB recently passed a recommendation to allow the use of parasiticides in emergency situations only (current allowance for dairy animals) on organic fiber-bearing animals provided 90 days elapse between treatment and shearing. They maintain this will ensure organic fleece and wool will be free of synthetic substances and still meet consumers’ expectations. This, in turn, would allow producers to maintain the health of their flock and access the organic premium for their wool, which would position American organic sheep producers to help meet textile manufacturers’ requests for more organic fiber to respond to the growing demand for organic processed wool and GOTS-certified textiles.

NOP accepted NOSB’s recommendation and will eventually release a proposed rule for further comment. OTA supported NOSB’s recommendation and will be requesting member feedback and submitting comments to NOP.

OTA’s Fiber Council

OTA is continuing to strengthen its efforts to promote organic fiber and textiles with its newly formed Organic Fiber Council officially approved in April 2015. The Organic Fiber Council is working to help OTA advance the promotion and protection of the organic brand. Current members include Portico Brands/Under the Canopy, On the Mark PR, Maggie’s, MetaWear, Specialty Sleep Association, Naturepedic, Richard Siegel Law Offices, MOM’s Organic Market, OTCO, Control Union, Texas Organic Cotton Marketing Cooperative, Dhana, Hae Now Inc., Boll & Branch, Coyuchi and PACT.

The Fiber Council is scheduled to have a presence at Natural Products Expo East 2016 in Baltimore, ShiftCon 2016 in New Orleans, and is planning to launch an exciting media event in spring 2017 featuring a three-day pop-up storefront in New York showcasing organic fiber and textile products. If you are interested in joining the Fiber Council or sponsoring the media event, let us know. To learn more about our fiber work, check out OTA’s website under Advocacy.”

dietary supplements

Several OTA member companies have requested the establishment of an OTA dietary supplement sector council. As a group, they are interested in becoming more engaged in the NOSB process and in helping shape OTA’s comments as they relate to other policy and regulatory issues that may impact organic dietary supplements. Overall, they are forming the council to grow the organic dietary supplement industry.

OTA is excited to support this request, and we look forward to the establishment of another new sector council. To learn more about other work OTA is involved in related to the allowance of vitamins and minerals in NOP certified products, check out OTA’s website under Advocacy.” //