[Market-farming] "organic": actual USDA regulations

road's end farm organic101 at linkny.com
Tue Jul 24 10:08:06 EDT 2007


On Jul 24, 2007, at 12:08 AM, sora at coldreams.com wrote:

>
> Now knowledgeable people tell me that I can legally refer to my
> organically grown produce as 'organic' as long as I do not say
> 'organically certified,' which I am not.
>
> My question: is this true? I thought the USDA now 'owns' the word and
> that 'organic' legally means the same as 'organically certified by
> the USDA' if I use it in conjunction with produce. Since I am not
> USDA certified, I cannot use it.
>

On Jul 24, 2007, at 8:05 AM, Nett Riherd wrote:

> I don't know how it is everywhere, but here in Oklahoma you can say 
> you are organic. But there is a fine if you say certified organic. We 
> own a certified organic produce and herb business, and I know we have 
> to go through our states food and forestry department to get 
> certified, so if you have questions about it you could call your 
> department. 
> Hope this helps..
> Annette in Oklahoma
>
This is not state by state; this is USA Federal law. My guess is that 
they just haven't got around to enforcing it yet. And the 
"knowledgeable people" aren't.

I'm copying the language in question below from the USDA website. It's 
written in officialese, but the sense is clear: you can't represent 
your product as "organic" unless either a) it's certified by a 
USDA-accepted certifier, or b) you sell less than $5000 annually *and* 
meet the standards and are keeping all the records necessary to prove 
this. And yes, it says "organic", not "certified organic". This caused 
considerable argument from much of the organic community when the law 
was being produced; but the best we could manage was to stop the USDA 
from putting in the law that you also couldn't use any language 
*implying* organic, such as "natural" or "sustainable"; they did have 
such a provision in the early drafts. You can legally use other wording 
entirely; but you can't use the word "organic".

I've run into people claiming the $5000 exemption who had no idea what 
the current regulations are, let alone were following them; they were 
going by their own private ideas of what's acceptable for organic 
production. I didn't bother calling the USDA on them. However, if 
you're claiming to your customers, in whatever form, that your produce 
is organic, it's my opinion that you need to at least read the current 
standards. There are lots of things in ancient Rodale books, etc.,  
that used to be considered organic practice that aren't any more; some 
of which (such as nicotine dust) were banned by any reputable certifier 
long before the USDA got into the subject. Also, if you want to risk 
fines of $10,000 per incident, you should at least know that you're 
taking that risk.

Here's the exact language from the Federal law (link to the whole 
standards included):

http://www.ams.usda.gov/nop/NOP/standards.html

Subpart B - Applicability

§ 205.100 What has to be certified.

(a) Except for operations exempt or excluded in § 205.101, each 
production or handling operation or specified portion of a production 
or handling operation that produces or handles crops, livestock, 
livestock products, or other agricultural products that are intended to 
be sold, labeled, or represented as "100 percent organic," "organic," 
or "made with organic (specified ingredients or food group(s))" must be 
certified according to the provisions of subpart E of this part and 
must meet all other applicable requirements of this part.

(b) Any production or handling operation or specified portion of a 
production or handling operation that has been already certified by a 
certifying agent on the date that the certifying agent receives its 
accreditation under this part shall be deemed to be certified under the 
Act until the operation's next anniversary date of certification. Such 
recognition shall only be available to those operations certified by a 
certifying agent that receives its accreditation within 18 months from 
the effective date of this final rule.

(c) Any operation that:

(1) Knowingly sells or labels a product as organic, except in 
accordance with the Act, shall be subject to a civil penalty of not 
more than 3.91(b)(1)(xxxvii) of this title per violation.
	[I can't find 3.91(b)(1)(xxxvii); but my paper copy of the 2006 
regulations says: "a civil penalty of not more than $10,000 per 
violation." The 2007 language has this bit about 3.91(b)(1)(xxxvii) 
instead.]

(2) Makes a false statement under the Act to the Secretary, a governing 
State official, or an accredited certifying agent shall be subject to 
the provisions of section 1001 of title 18, United States Code.

[65 FR 80637, Dec. 21, 2000, as amended at 70 FR 29579, May 24, 2005]

§ 205.101 Exemptions and exclusions from certification.

(a) Exemptions.

(1) A production or handling operation that sells agricultural products 
as "organic" but whose gross agricultural income from organic sales 
totals $5,000 or less annually is exempt from certification under 
subpart E of this part and from submitting an organic system plan for 
acceptance or approval under § 205.201 but must comply with the 
applicable organic production and handling requirements of subpart C of 
this part and the labeling requirements of § 205.310. The products from 
such operations shall not be used as ingredients identified as organic 
in processed products produced by another handling operation.

(2) A handling operation that is a retail food establishment or portion 
of a retail food establishment that handles organically produced 
agricultural products but does not process them is exempt from the 
requirements in this part.

(3) A handling operation or portion of a handling operation that only 
handles agricultural products that contain less than 70 percent organic 
ingredients by total weight of the finished product (excluding water 
and salt) is exempt from the requirements in this part, except:

(i) The provisions for prevention of contact of organic products with 
prohibited substances set forth in § 205.272 with respect to any 
organically produced ingredients used in an agricultural product;

(ii) The labeling provisions of §§ 205.305 and 205.310; and

(iii) The recordkeeping provisions in paragraph (c) of this section.

(4) A handling operation or portion of a handling operation that only 
identifies organic ingredients on the information panel is exempt from 
the requirements in this part, except:

(i) The provisions for prevention of contact of organic products with 
prohibited substances set forth in § 205.272 with respect to any 
organically produced ingredients used in an agricultural product;

(ii) The labeling provisions of §§ 205.305 and 205.310; and

(iii) The recordkeeping provisions in paragraph (c) of this section.

(b) Exclusions.

(1) A handling operation or portion of a handling operation is excluded 
from the requirements of this part, except for the requirements for the 
prevention of commingling and contact with prohibited substances as set 
forth in § 205.272 with respect to any organically produced products, 
if such operation or portion of the operation only sells organic 
agricultural products labeled as "100 percent organic," "organic," or 
"made with organic (specified ingredients or food group(s))" that:

(i) Are packaged or otherwise enclosed in a container prior to being 
received or acquired by the operation; and

(ii) Remain in the same package or container and are not otherwise 
processed while in the control of the handling operation.

(2) A handling operation that is a retail food establishment or portion 
of a retail food establishment that processes, on the premises of the 
retail food establishment, raw and ready-to-eat food from agricultural 
products that were previously labeled as "100 percent organic," 
"organic," or "made with organic (specified ingredients or food 
group(s))" is excluded from the requirements in this part, except:

(i) The requirements for the prevention of contact with prohibited 
substances as set forth in § 205.272; and

(ii) The labeling provisions of § 205.310.

(c) Records to be maintained by exempt operations.

(1) Any handling operation exempt from certification pursuant to 
paragraph (a)(3) or (a)(4) of this section must maintain records 
sufficient to:

(i) Prove that ingredients identified as organic were organically 
produced and handled; and

(ii) Verify quantities produced from such ingredients.

(2) Records must be maintained for no less than 3 years beyond their 
creation and the operations must allow representatives of the Secretary 
and the applicable State organic programs' governing State official 
access to these records for inspection and copying during normal 
business hours to determine compliance with the applicable regulations 
set forth in this part.

§ 205.102 Use of the term, "organic."

Any agricultural product that is sold, labeled, or represented as "100 
percent organic," "organic," or "made with organic (specified 
ingredients or food group(s))" must be:

(a) Produced in accordance with the requirements specified in § 205.101 
or §§ 205.202 through 205.207 or §§ 205.236 through 205.239 and all 
other applicable requirements of part 205; and

(b) Handled in accordance with the requirements specified in § 205.101 
or §§ 205.270 through 205.272 and all other applicable requirements of 
this part 205.



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