NOSB Update: Defining Materials and Determining Which Will Make The List

By Andrea Caroe


From deciding what nonorganic agricultural items will be allowed on the National List to defining terms like “agricultural” and “synthetic”— the National Organic Standards Board (NOSB) is going to be making some major decisions soon that could drastically change the way you do business. Here are some of the hot topics everyone should be aware of and what you can do to take action.

The Race for 606: On Your Mark, Get Set, Go
As this magazine hits your desk, if you have not yet filed petitions to get your minor nonorganic agricultural ingredients put on the National List (section 202.606), then you better not just run, you better sprint to your computer, and file your petition at www.ota.com/pp/usregulatory/ 606template.html.

On June 9, 2005, when the final judgment for the case of Harvey v. Johanns was issued, a race began. The goal: to get qualified minor, nonorganic, agricultural ingredients petitioned, reviewed and on the National List by June 9, 2007.

Under this judgment, section 202.606, “Nonorganically produced agricultural products allowed as ingredients in or on processed products labeled as organic or made with organic ingredients,” will no longer grant a blanket exemption for certifying agents and their clients to determine the commercial unavailability of nonorganic agricultural substances. Instead, as of June 9, 2007, a nonorganically produced agricultural ingredient will only be permitted in “USDA Organic” products if: 1) it is listed in section 205.606; and 2) an accredited certifying agent has determined that the organic form of the agricultural product is not commercially available.

All items listed in 606 by the June deadline first must be petitioned by the manufacturer and then reviewed and recommended by the board 30 days before the National Organics Standards Board Spring Meeting, which at the time of publication is planned for late March or early April.

In the Homestretch
Even now with the June 2007 deadline rapidly approaching, there are still many manufacturers who have not even entered the race by filing a petition—meaning their chance of crossing the finish line before the clock runs out are slim to none.

If you are one of these manufacturers, the first thing you’ll want to do is check the database of current petitioned substances on the National Organic Program (NOP) website at: www.ams.usda.gov/nop/NationalList/PetitionedSubstancesDatabase.htm. If you’re lucky someone else has filed a petition for the needed ingredient in time.

In order to ensure that the petition makes it all the way through to the list, manufacturers will also want to look to see if there is additional justification that can be contributed to support the petition during the 30-day public comment period before the NOSB meeting. If the ingredient was not petitioned, then it is important to file a petition immediately—even if you don’t think you have a chance to meet the deadline.


Missed the Gun?
If an ingredient has not been petitioned and recommended by the board before the Spring Meeting, as of June 9, 2007, all products labeled “USDA Organic” that include that nonorganic, agricultural ingredient will be deemed “noncompliant” by USDA Organic certification rules.

But all is not lost—the NOSB accepts petitions to add or remove items from the list at any time. Don’t wait though. Until your minor, nonorganic agricultural ingredients are actually added to 606, any product labeled “USDA Organic” using that ingredient will be considered non-compliant. Your options for mitigating this noncompliance is to either label your product as “made with organic,” remove the product from the marketplace or petition your agricultural ingredient and negotiate with your certifier a timeframe for compliance.

So How Does It All Work?
Anytime an item is reviewed for the National List, it starts with the manufacturers who submit petitions to the NOP where it’s reviewed for completeness. If it doesn’t meet certain guidelines, then the NOP will contact the petitioner for more information, but this adds time to the process, so it is important to get it right the first time. (For tips on petitioning, see “Guidelines for Petitioning.”)

If the NOP approves the petition, then the baton is handed off to the NOSB. The NOSB Materials Committee facilitates the process and the NOSB Handling Committee reviews the petition. During this time, either committee may ask the petitioner for further information or explore outside sources of information. After the Handling Committee has voted on the material, their material recommendation is forwarded to the full board and posted on the NOSB website.

Now the public has an opportunity to get involved. The posted material recommendations are available for public comment. Producers of organic materials are encouraged to provide information about supply. Other manufacturers who also face supply challenges should provide testimony and comments along with additional evidence. Since the issue of commercial availability is based on the market, it only makes sense that the market can provide the best feedback.

Then it’s back to the NOSB, where the petition and the collected public comments are considered for vote at the next public NOSB meeting. After the board makes its recommendation, the NOP will process it through the government channels and cross the finish line with a Federal Register Notice of a Proposed Rule Change.

Determining Commercial Availability
Once a material makes it into 606 it’s available to be “considered” for use, but within your organic plan there must be detailed information that supports the manufacturers claim that there is an insufficient or non-existent supply of the organic form.

During the October 2006 board meeting, a recommendation was passed that outlines the process of determining if a material is commercially available in an organic form. Information required in the recommendation includes any test data that demonstrate an organic substitute does not fulfill the required function.

The certification agent will then determine if the manufacturer has adequately proven that the ingredient is not commercially available in an appropriate form, quality or quantity to fulfill an essential function in a system of organic production or handling. Until the certification agent has approved the organic plan and provided an updated certification, the use of the nonorganic ingredient is not permitted.

Also remember, as of June 9, 2007, a certification agent is not allowed to approve any product as “USDA Organic” if it contains a nonorganic agricultural ingredient that is not listed in section 205.606. Many ingredients such as exotic spices used in quantities far less than one percent could in fact put a product out of compliance. Certifiers would be forced to issue noncompliances for these products. The consequences are far too severe to allow failure.

More on Materials
The National Organic Standards Board is also working on several other draft recommendations that will assist in clarifying the materials review process including:

The Sunset of “Colors, Natural.” During the recent sunset review process, the NOSB voted to allow the non-specific category, “Colors, Natural” to sunset. One of the main reasons for this was the listing of these materials without a NOSB recommendation. Instead of the large umbrella category of “Colors, Natural,” colors will now need to be approved and listed individually. Most of these substances are considered “agricultural” under the current board interpretation. Therefore, the board urges the trade to submit petitions for various color types for inclusion on 205.606. At the time of printing this article, there were 10 petitions filed that relate to a color material for consideration to be added to the National List.

Agricultural Versus Nonagricultural. How can you put agricultural items on a list if you don’t know what agricultural means? At the October 2006 meeting, a joint committee, composed of both the Handling and Materials Committees, attempted to define “agricultural” in a recommendation. During the public testimony, the board heard a concern from the industry with regards to the implications of the recommendation. One such concern is related to the apparent inappropriate listing of several materials on 205.605, as nonagricultural. The recommendation requested moving these materials to 205.606 by technical correction. However, there were suggestions that this may not be permitted by the regulatory process and therefore, these materials would require re-petitioning to 205.606.

For this reason, the committee deferred the vote pending further deliberation with the industry. In the next couple of months, the board will discuss this further with the trade in order to ensure that all the ramifications of the recommendation are clearly understood. Also, this time may be used for manufacturers that use the “inappropriately” listed items to submit petitions.
Materials that could require re-petitioning for inclusion on 205.606 include:

• Animal enzymes: rennet (animal derived), catalase (bovine liver), animal lipase; pancreatin; pepsin; and trypsin

• Daily cultures

• Enzymes: must be derived from edible, nontoxic plants, nonpathogenic fungi or nonpathogenic bacteria

• Yeast: autolysate, baker, brewers, nutritional and smoked; nonsynthetic smoke flavoring process must be documented and growth on petrochemical substances and sulfite waste liquor is prohibited

• Microorganisms: any food grade bacteria, fungi and other microorganisms

• Egg white lysozyme

Synthetic Versus Nonsynthetic. At some point, even the most basic plant life can be altered by human being and become synthetic. But when does that happen?

The Materials Committee and the Handling Committee prepared a recommendation prior to the October meeting. However, due to a pending court ruling surrounding the Harvey case, the program was not at liberty to discuss this issue at that time. The committee has taken the recommendation back and now that the court ruling has been made, they will enter into collaboration with the NOP to formulate a new draft for consideration at a later date.

Other NOSB Projects
The Livestock Committee is working closely with the Aquaculture Working Group to formulate standards for organic fish. Presently, there are organic fish products on the market certified to foreign standards. Until such time as the USDA establishes standards for organic aquaculture, the labeling of these products remains out of the scope of the regulation. Therefore, these foreign certified products may remain on the market; however, they are prohibited from using the USDA seal.

The challenge facing this group is how to balance the maintenance of the integrity of the organic label against the logistics of building infrastructure in this segment of the industry. Before the October meeting, the Livestock Committee posted several questions to the public for input exploring this issue. One concern was that in order to accommodate the natural diet of marine fin fish, fish feed needed to include certain amino acids found only in meat products. Therefore, in order to meet the dietary requirements of the fish, the feed must include either fish meal and fish oil or terrestrial livestock by-products.

Because organic fisheries do not exist, there are no sources of organic fish meal and fish oil. It seems that organic fish may be caught by a Catch 22. And as far as using livestock by-products, commentors were quick to point out that many organic consumers that are interested in buying organic fish do not eat meat. Likewise, they do not want their fish to eat meat.

At this time, the committee would like to move forward with standard language for aquaculture that does not require these amino acids in their diet. At a later date, the committee will further explore the feed issue and after a thorough public discussion, recommend further standard language to address these products.

Also at the October meeting, the Handling Committee accepted the work of the Pet Food Task Force. The committee will now take the work completed by the group and start formulating a recommendation for the addition to the regulation to address the labeling of organic pet food products.

An ad hoc committee of the board was formed to address parameters pertaining to research variances for farms. The committee will explore what compromises to the regulation, if any, are justified in the name of research and the advancement of organic production technology. The committee includes members with expertise in farming, livestock, research and retail. It is the intention of the committee to draft a recommendation for the spring 2007 meeting.

Andrea Caroe is the chairperson for the National Organic Standards Board, as well as the director of operations for Protected Harvest, a non-profit organization that independently certifies farmers’ use of stringent crop and region-specific environmental growing standards. She can be reached at andrea@protectedharvest.org.