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

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  • From: road's end farm <organic101 AT linkny.com>
  • To: Market Farming <market-farming AT lists.ibiblio.org>
  • Subject: Re: [Market-farming] "organic": actual USDA regulations
  • Date: Tue, 24 Jul 2007 10:08:06 -0400


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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