NOSB Update: Navigating the NOP through the 2012
Sunset Review, Nanotechnology, Animal Welfare and More

By Daniel Giacomini


As the organic industry grows there is a continuous flow of new challenges, as well as new insights. It’s the National Organic Standards Board’s (NOSB) responsibility to listen to the wide spectrum of voices in the organic community and help navigate the National Organic Program (NOP) through any challenges in a way that is true to the founding principles of the movement. The first meeting of 2010 focused on preparing for upcoming waves such as the 2012 sunset review as well as the controversial issue of nanotechnology. Additionally, it addressed some longstanding questions regarding classification of materials and ensuring animal welfare.

2012 Sunset Review of Materials
While 2012 still seems far away, it was the hot topic of conversation at the last NOSB meeting. That’s because 2012 is when the next “sunset review” is set to take place.

What Is a Sunset Review? When the Organic Food Production Act (OFPA) was passed in 1990, it required the development of a National List (NL) of Allowed and Prohibited Substances. The NL provides a rigorously reviewed, detailed list of synthetic materials that have been deemed safe and necessary for organic production and processing, as well as a list of nonorganic agricultural ingredients that are not yet commercially available in organic form. Furthermore, OFPA requires that the exemptions and prohibitions on the NL be reviewed by the NOSB every five years. If they are not reviewed by the NOSB and renewed by the Secretary of Agriculture within five years of their listing or relisting on the NL, then the authorized use or prohibition of these substances and products will expire—or sunset, thus the name “sunset review.” Many of the materials on the NL are key to product formulations, therefore the sunset review is of great importance to many processors and something that requires proactive thinking and preparation.

In the past, the direction from the NOP on this matter has been that only new information should be considered in the Board’s decision process for relisting each item. However, recently, the NOP issued a statement that all information on each listed item should be considered—including the original petition, technical report, NOSB recommendation, and the NOSB meeting transcripts from when the substance was previously discussed. While the decisions of past Boards deserve due consideration and respect, each sunset item is reviewed in the same way that a newly petitioned item would be and thus the material must once again prove itself worthy to maintain its status on the NL. New information on the substance and alternatives to the substance are considered, and a determination of whether a new technical report is necessary to evaluate the current status of the substance is made.

The original list of allowed and prohibited substances became effective in 2002. Those items were reviewed and voted on by the NOSB at meetings in 2005 and 2006 so that the Secretary could renew them by their deadline in 2007. Many other substances and products were added to the NL in 2007 as well. All these items are now up for another 5-year review and renewal by 2012.

The major work planned by the NOSB for calendar year 2010 is the review of all sunset items that would be expiring in 2012. Nearly 200 items on the NL are up for sunset review. The timeframe to complete the review by the NOSB and for the NOP to complete the rulemaking process requires that this process start approximately two years in advance of the expiration date.

Since the fall 2009 NOSB meeting, Board committees have been working to categorize all the items listed on the NL that are up for 2012 sunset review. These items were split into two lists. One list contained items that were less controversial, believed to have no new, more natural alternatives, or otherwise considered to face minimal opposition to relisting. These items were completely reviewed and if no new or surprising information was found, they were advanced for relisting and voted on by the entire NOSB at the spring 2010 meeting. Over 100 of the items up for consideration in the 2012 sunset review process were recommended for relisting at this meeting.

All of the listed items that were not included in the recommendations by the respective NOSB committees were deferred for consideration at the upcoming fall 2010 NOSB meeting. In all cases, additional information is desired by the committee in order to perform a complete review of these items. Many of the items to be considered in the fall were included in a list forwarded to the NOP requesting that specific questions be answered about the substances or a new technical review be prepared on these items. To see the list of items under review, go to www.ams.usda.gov and follow the links to the NOSB. If there is an item under review that is important in your product formulations, you may want to prepare a public comment presentation for the fall 2010 NOSB meeting that details why this item is needed. Additionally, if your company has developed an alternative to an item on the NL, that organic alternative should be presented to the NOSB at an upcoming public comment session.

Classification of Materials
Besides looking ahead to 2012, the NOSB also addressed one of the biggest areas of confusion since the creation of the NOP: how to define the key areas of material classification, specifically synthetic versus nonsynthetic and agricultural versus nonagricultural. The Materials Working Group met regularly throughout 2008 and 2009 regarding the classification of materials and at the fall 2009 meeting, the NOSB passed a recommendation attempting to clarify this matter. The Board continued to work on the classification of materials at the recent spring 2010 NOSB meeting.

One important and significant aspect of these recommendations is the recognition that both the source of the substance and the processes it undergoes are important in determining whether a particular version of a material is categorized as “synthetic” or “nonsynthetic.” The NOSB also recommended that agricultural products that are minimally processed stay classified as “agricultural” rather than being put in the separate category of “nonsynthetic.” However, if the agricultural material is processed extensively with significant chemical change, then it would be classified as synthetic. Another point made was that depending on source and process, it’s possible for versions of a particular substance to be classified as agricultural, nonsynthetic or synthetic. Citric acid is an example of a substance that, depending on its source and processing, could fit into any of the three categories.

The Board also recommended that if a nonsynthetic version of a substance listed on 605(b) (allowed synthetics) becomes available, then it should be allowed for use in organic processing without having to go through the lengthy petition process to have that substance specifically listed on section 605(a) (allowed nonsynthetics) of the NL. For example, cellulose is listed on 605(b) due to the typical chemical processing methods the substance undergoes. However, if a less synthetic cellulose was developed—using a nonchemical-based processing method—it could be used without having to wait for it to be added to the list separately.

The Board also discussed the classification of microbiological life such as yeast, fungus and bacteria, and the products made via natural biological processes from microbiological life. While a few of these products are already considered agricultural, most are currently classified as nonagricultural/nonsynthetic and listed on section 605 of the NL. Some individuals have argued that more forms should be considered agricultural. The Board acknowledged in the recommendation that the classification of these items is complicated and suggested that both categories be evaluated and reviewed on a case-by-case basis by the Board through the established petition process.

One of the reasons why some have sought to have microbiological life such as yeast categorized as agricultural is because it would then be subject to the “commercial availability” rule for items listed in section 606 (nonorganically produced agricultural products). Earlier this year, the NOP decided that yeast could be certified organic; however, because it is listed on section 605 (nonagricultural substances), manufacturers are not required to use the organic form. To offer a solution for issues like this, the Board requested that the NOP consider extending the “commercial availability” rule to include NL section 605. If this change is made, manufacturers will need to prove that yeast, as well as any nonagricultural ingredient, is not commercially available in organic before they are permitted to use nonorganic versions.

Inert Atmospheric Gas
Another topic discussed at the meeting was inert atmospheric gases such as nitrogen. These are used in processing as a floating gas barrier to displace oxygen and prevent oxidation and rancidity in the product. Prior to 2007, the use of these materials was allowed in products that made a 100 percent organic labeling claim. In 2007, this interpretation was changed by the NOP and these gases were determined to be processing aids, which voided the 100 percent claim. However, since these inert gases do not cause any change to the product, the Board suggested that they be viewed as a packaging aid rather than a processing aid. At the spring 2010 meeting, the NOSB passed a guidance recommendation that the use of inert atmospheric gases to displace oxygen in processed products once again be allowed within the 100 percent organic claim.

Nanotechnology
Nanotechnology—a burgeoning area of product development that breaks down matter to a molecular and atomic scale—has also become a big concern to many in the organic industry. In spring 2009, the NOSB heard public comment on a discussion document regarding the use of nanotechnology and the products of nanotechnology in the organic industry. The majority of those who offered comments requested a complete prohibition of nanotechnology (and products resulting from it) in certified organic production and processing. Because of this, in fall 2009, the NOSB considered adding nanotechnology to section 205.105 of the organic regulation as a “prohibited technology.” This recommendation did not intend to include nano-sized particles inadvertently created in traditional processing technology such as homogenization or flour milling; however, there was confusion as to whether the definition of “nanotechnology” was clear in that case. This recommendation was not voted on by the full Board because of disagreement over the definition of the term “nanotechnology,” which would impact how the prohibition is applied.
In order to further define nanotechnology in regards to the organic industry, the Material Committee has requested the NOP submit this matter for a technical review by scientific experts and the document making this request was submitted for public comment at the spring 2010 NOSB meeting. The NOSB took public comment on that document specifically, and this subject in general at the meeting. Whether members of the Board and the general public will agree with the complete prohibition or if certain types of nanotechnology will be allowed as synthetic ultimately depends on how the term is defined. (For more information, see Nanotechnology and the Implications for Organic, published in the March-April 2010 issue of Organic Processing.)

Production Issues
The NOSB has continued to consider a number of production issues as well, including animal welfare issues related to the organic rule. At the fall 2009 meeting, the Board passed an extensive animal welfare recommendation, which reviewed the sections in the rule dealing with livestock living conditions and health care practices. The recommendation included language to prevent or minimize overcrowding and addressed other factors that contribute to the health and natural behavior of the animals. Following up on this, at the spring 2010 meeting the NOSB considered a discussion document on stocking density of organic livestock in various housing operations and will take all the comments received and continue to study the issue to potentially be included in a future animal welfare recommendation.

Additionally, the NOSB recommended the relisting of synthetic methionine to be allowed in the diet of organic poultry on a limited use basis and recommended that level be further reduced after 2012. The NOSB also recommended that milk from organic lactating animals treated with allowed synthetic (NL section 603) substances that carry a withholding time on the milk can be used to feed young organic livestock via either the nursing of the mother or surrogate mother by the young or hand-fed to the young animals still being fed milk in their diet. In regard to crop production, the NOSB passed a Crops Committee recommendation to clarify production standards for growing terrestrial plants in containers and enclosures.

The NOSB also passed a guidance recommendation that proposed the creation of a Memorandum of Understanding with the Environmental Protection Agency (EPA) on the matter of the EPA list formerly known as “List 4 Inerts.” The recommendation suggests the development of a task force that involves all stakeholders in this matter including the EPA, pesticide manufacturers and various representatives from the organic community, such as crop and livestock producers, processors and certifiers, as well as the public. This task force would discuss how these substances might be allowed or prohibited in organic production and processing.

What’s Next?
While the NOSB has made great strides, it’s important to understand that NOSB recommendations are not instantly inducted into the NOP regulations. Instead, after the NOSB makes a recommendation it’s passed on to the USDA via the NOP. The USDA then considers the recommendations for incorporation into the NOP regulations. NOSB recommendations should not be applied in organic production and processing until the NOP publishes a final rule or issues official guidance on the subject.

Meanwhile, the NOSB continues to work on issues important to the organic industry and welcomes your input. Every year, the NOSB leads two public meetings where they listen to public comments from the organic community, discuss issues that are important to the organic industry, and make recommendations to clarify the national organic standard. These meetings allow for public comment in both written and oral form to help direct the Board on important matters. Everyone interested in the integrity of the organic seal and the growth of this industry is encouraged to participate in this important process. This is your industry and your voice needs to be heard.

Daniel Giacomini is an organic consultant with Pacific Nutrition-Consulting and the 2010 chairperson of the USDA’s National Organic Standards Board. He can be reached at pnc@cloverjack.com.

All comments regarding official NOSB business should be submitted to the NOP for distribution to NOSB members.