OVERVIEW

Consumers Union provides the comments below on USDA's proposed rule: National Organic Program [Docket No. TMD-00-02-PR] published in the 65 Federal Register 13512, March 8, 2000, which implements the OFPA. Consumers Union commends USDA for this proposed rule, which aligns closely to consumer expectations of the term "organic." The proposed regulations are in general, far more comprehensive than the original proposed rule in 1997 and embody the decisions and guidance of the National Organic Standards Board (NOSB). The proposed rule includes the implementation of the National List whereby every substance listed has met with the approval of the NOSB. This materials list will continue to remain under the guidance of the NOSB.

However, we do have some concerns that should be taken into consideration before the final rule is promulgated. These issues are directly related to consumer expectations of what defines an organic product including the use of antibiotics in crop production, manure application, temporary variances, and percent organic content issues. A strong and meaningful set of standards must be upheld so consumers will not be misled.

CATEGORICAL EXCLUSIONS

The categorical exclusions below should be permanent and not subject to future reevaluation on a case by case basis.

1. Genetic engineering

Consumers Union supports the explicit prohibition on genetically engineered organisms (GEOs), including derivatives and products of GEOs, used in organic production including prohibition on seeds, annual seedlings, plant stock, pest control substances and ingredients produced with excluded methods.

2. Irradiation and 3. Sewage sludge

Consumers Unions supports the explicit prohibition on the use of sewer sludge or irradiation in all products labeled as organic.

3. Rendered animal protein for animal feed

Consumers Unions supports the explicit prohibition on feeding organic livestock any poultry or mammalian slaughter by-products. We also support the current provision that prohibits feeding organic livestock with manure, formulas containing urea, and plastic pellets for roughage.

The proposed rule allows individuals to petition the NOSB to review materials to be added or deleted from the National List. Although this is within the scope of the NOSB recommendations, the NOSB goes further to recommend that a technical review process be used to develop additions or subtractions to the list while petitions can be considered at any time. Consumers Union believes that the NOSB recommendations, not adopted by this proposed rule, would provide a more scientifically sound basis for making decisions with regard to the National List and thus protect the consumer more effectively.

1. Synthetic additives

Consumers Union supports the proposed rule's adoption of the National List under the guidance of the NOSB. However the OFPA mandates itemization of each synthetic substance on the National List by specific use or application. This has not been uniformly applied in the proposed rule nor is there any mention of this provision for future additions or changes to the National List. This appears to be a in violation of the OFPA and should be revised for the final rule.

2. Synthetic inert ingredients

Consumers Union supports the USDA adoption of the OFPA meaning of synthetic inert ingredients as only in reference to pesticide formulations. We agree that all synthetic inerts must be approved by the NOSB and added to the National List. Further, we support the proposed rule's position that explicitly prohibits EPA List 1 ingredients and requires that EPA List 2 and List 3 ingredients meet with the approval of the NOSB in order to be added to the National List. Although there are no restrictions placed on EPA List 4 ingredients unless specifically prohibited on the National List, Consumers Union believes that all EPA List 4 ingredients should be subject to review by the NOSB and approved ingredients should also be added to the National List. Since the OFPA is explicit about NOSB review of all synthetic substances, approved EPA List 4 ingredients should not be an exception.

Since USDA has restricted the definition of "inert ingredient" to pesticide formulations, all other formulations such as fertilizers and foliar sprays would theoretically have to use NOSB approved synthetics that are on the National List. However, the new proposal is lax in the regulation of EPA List 4 ingredients in all formulations and therefore these ingredients could also be used outside the scope of pesticide formulations and thus synthetic inerts.

3. Antibiotics used in production

Consumers Union supports the explicit prohibition of antibiotics in organic livestock production. The National List as it stands however, does not include any antibiotics, approved or prohibited, for use on crop production. This distinction blurs the meaning of organic by setting different standards for meat than for crop production and is potentially misleading to the consumer.

We have additional concerns regarding the use of antibiotics on crop production. In light of the policy written for organic livestock production prohibiting the use of antibiotics, and that consumer expectation for "organically produced" does not include the use of antibiotics, we question whether antibiotics should be allowed in crop production. We are particularly concerned with the growing problem of antibiotic resistance and therefore oppose all unnecessary use of antibiotics.

4. Organic feed requirement

Consumers Union supports the requirement of 100% organic feed in organic livestock production. In the event of emergency situations outlined as "drought, flood, and other natural disasters" "exemptions for emergency feed must be authorized by the Administrator through procedures for establishing temporary variances." The section on temporary variances only loosely describes the meaning of natural disasters; states that time limits should be set by the certifying agent; and that those limits can be extended at the discretion of the certifying agent. Consumers Union believes that this provision is too lax and would allow for cases where organically raised livestock could be fed non-organic feed for an indefinite period of time, perhaps even for the entire life of the animal. In addition, this provision could cause variability in time limits even within the same geographic area. We urge USDA to establish a ceiling of time that can be applied to exemptions during emergency situations. Without this reference, there are no real time limits that must be met and consumers could be misled by organic labeling.

5. Manure

Subpart C of the proposed rule discusses Resource Management for Production and Handling. As the proposed rule stands, manure from any source is acceptable and raw manure can be applied to crops directly, provided harvest occurs after a set period of time. We believe that this is unacceptable for a number of reasons. "Any source" of manure includes all non-organic farming operations including concentrated animal feeding operations (CAFOs) which raise hogs, chickens, and cattle in densely populated and confined conditions. The incidence of death, disease, antibiotic and heavy metal use is high on these farms. This raises serious questions regarding the safety of manure obtained from non-organic and confined sources.

The Southwest Regional Office of Consumers Union (SWRO) along with The Sierra Club, has just published a report on the impact of animal factories on public health and can be accessed at www.consumersunion.org. This document cites a 1999 report from the Texas Natural Resource and Conservation Commission that confirms the routine addition of heavy metals to poultry diet including arsenic, copper, zinc, manganese, selenium and cobalt. The report also confirms that these metals pass through the animals and can be measured in feces. Furthermore, some of these metals such as copper are concentrated in the manure and may actually be toxic to crops over a long application period. Arsenic is explicitly prohibited in section 205.602 of the National List. For these reasons alone, raw manure from any source does not meet USDA or consumer expectation of "organic" production.

Industrial animal producers also use low-level antibiotics in animal feed to promote growth. This practice has already been banned in Europe and some studies have found that such use results in the spread of antibiotic resistant bacteria. Crowded conditions lead to increased disease, death and drug use resulting in manure that carries a proportional load of pathogens and antibiotics, which could lead to increased antibiotic resistant bacteria. Once again, consumers do not expect that antibiotics or their residues will be routinely applied to organic crops.

The European Union allows manure produced only from organically produced livestock to be used in organic crop production. In order for the U.S. producers to export to the EU, they would have to change the type of manure used and most likely, allocate separate land for exported products since there may be antibiotic and metal residues from using non-organic manure. For all of these reasons, Consumers Union strongly opposes the use of manure from any source.

1. Prohibition against misleading labeling

Consumers Union continues to support the provision of the OFPA that protects consumers from label claims that directly or indirectly imply that the product was produced using organic methods except when produced in accordance with the OFPA. Labeling must be reliably transparent and truthful and should not imply the food is organic, or relatively more organic, when it is not.

The USDA has made considerable strides to increase the meaning behind the term organic by creating a thoughtful, analytical and dynamic decision making process under the guidance of the NOSB and the National List. In this way, the definition of organic has been standardized. However certain proposals undermine the credibility of the label.

As the proposed rule stands, there are four labeling categories: 100% organic, organic (95% or more organic content), made with organic (specific) ingredients (50-95% organic content, up to 3 ingredients may be listed on front panel), and those with less than 50% organic content (which can only list organic ingredients on the back panel). Consumers Union is concerned that the first two categories could easily mislead consumers. Organic has been regarded by the OFPA and most of this proposed rule as a 100%. We believe that this should not be undermined in the labeling process. To be labeled organic a product should actually be 100% organic. If the product is 95% organic, it should be qualified on the packaging as 95% organic. Products that are only 95% organic but labeled as "organic" will be misleading to consumers and deviate from the goals of the OFPA and the proposed rule.

Consumers could also be misled by the labeling in a product that is "made with (specific) organic ingredients." It is not clear from the proposal how a consumer would know if those ingredients were 100% organic or 95% organic. Similarly with the last product category, that with less than 50% organic content, the organic ingredients listed on the back panel would not represent the organic percentage of each organic ingredient.

Under the new proposed rule, private certifying agents may only certify organic products to the NOP standards or the higher standards of the state. Since private certifying agents cannot certify to any other standard, we believe that the labeling of organic products should reflect one standard. As the rule stands, 100% organic, and organic products can be labeled with either the USDA seal or the private certifying agent seal on the front display. In order to minimize consumer confusion while giving credence to private certification, we urge USDA to adopt one main seal and mandate the use of that seal. If a private certifying agent has certified the product, they could place their organization name on the seal. Alternatively, private certifying agents could have a statement such as "this product was certified organic by XX," and place a small copy of the logo after the statement. In this way, consumers will have a clear understanding of the standards behind a certain product.

In category three, "made with organic (specified) ingredients," the proposed rule would allow a final product to contain the private certifying agent seal but not the USDA seal. In this way, the consumer can be misled into thinking that a product is 100% or 95% organic. We believe that since this proposed rule has set standards on handling, the only seal that should be used is a USDA seal. This seal could deviate slightly by including the word "handled" somewhere in or near the seal and again include a statement and small logo if a private certifying agent has done the certification.

2. Equivalency versus accreditation for foreign programs

As the proposed rule stands, only foreign governments with established national organic programs are eligible for USDA / NOP equivalency. Consumers Union believes that all foreign organic programs including those established by governments should and must apply for accreditation and meet all standards for the USDA National Organic Program. We believe that equivalency is not a rigorous approach that ensures imported organic products meet the USDA-NOP standards and consumer expectations of "organic." A declaration of "equivalency" for a foreign government program could result in products entering the country which do not meet the same standards as domestically grown organic products, but which compete with them in the marketplace. This would be unfair to domestic producers, and highly misleading to consumers. The USDA should insure that equivalency is not used in this way.

3. Exemptions to certification

At this time, grocery stores (i.e. retailers) and restaurants are exempt from certification. However, many retailers are planning to or already have their own organic processed food lines such as bread. For example, a bakery that sells its products to other retail establishments is considered a processor and must be certified. However, under this proposed rule, a bakery that makes and sells its own product (and does not sell to other retailers) would be exempt from certification. This appears to be in violation of the OFPA, which only authorizes exemptions for retailers who do not process. Consumers Union strongly urges the USDA to explicitly state that retailers producing their own line of organic products, who are therefore processors, are not exempt from certification. The NOSB, CODEX, and the EU all require this type of certification. In addition, retailers who purchase certified organic products either domestically or abroad should also be required to place a placard near the product that denotes the appropriate organic certification seal.

4. Prohibition against more stringent requirements by some certifying agents

Consumers Union continues to support the ability of state and private certifying agents to certify organic products at higher standards that those set by the NOP. We continue to believe that the standards set by the rule should be a floor and not a ceiling. We therefore support the provision allowing states to apply for a "special program" status. However, the proposal qualifies USDA approval of these programs by saying that a State's more restrictive requirements, "are likely to cover specific production or handling practices such as more restricted use of National List substances or farming practices to address a State or area's particular environmental conditions." We urge USDA to allow states to use more restrictive practices if they so choose. We believe that the environmental conditions are inherently improved based on more restrictions, i.e. less additives and less chemicals. States setting more stringent standards ought to be welcomed by USDA and not subject to a long arduous process for approval. It is not clear form the language of the proposal if USDA will easily approve more stringent standards.

As such, we believe that states that use more restrictive standards should use a variation of the main USDA seal, which includes the acronym of the state such as "USDA-CA." And again the same provisions for private certifying agents in the state should follow the labeling scheme described above.

5. Conflict of interest

Consumers Union supports the new proposal's expansion of the term "commercial interest," to apply to the operation, marketing, or distribution of its products. We also support the inclusion of "immediate family members" within the scope of conflicts of interest.

However, based on our previous comments, CU remains concerned that there are no requirements for accreditation that would prevent a former certifying agent/employee/inspector/family member from obtaining ownership interest in an operation that he or she had just certified. Under this rule, a certifying agent/employee/inspector/family member could certify an operation as organic, terminate their employment, and subsequently obtain a commercial interest in the certified farm. USDA has responded to this by explaining that safeguards already exist which prevent a post-certification conflict of interest because, "while associated with the certifying agent, personnel are required to disclose any offer of employment they have received and not immediately refused." CU believes that this is not an adequate provision to prevent post-certification conflicts of interest nor does it apply to family members who may not be directly employed by the certification agent.

6. Pesticide residue testing

The USDA has responded to several comments regarding the frequency of pesticide residue testing citing only those that were concerned that testing done "no less than every five years" was too burdensome.

The proposed rule calls for a certifying agent to test a certified farm or handling operation "not less frequently than every five years." This requirement is an inadequate foundation from which consumers can be assured that organic foods have not been grown with the use of synthetic pesticides.

Consumers Union tested organic and conventionally grown produce for the presence of pesticide residue and published the results in the January 1998 edition of Consumer Reports. We were surprised to find in our investigation that 25% of the organic foods we tested contained traces of pesticide not sanctioned for use by any private or state organic certification program. The residues we found on organically labeled foods may have resulted from inadvertent drift or carry-over in the soil, or from direct application.

We support the provision in the new proposed rule that oversees contamination of crops including drift by removing these products from being labeled as organic. However, this provision cannot effectively be implemented unless routine pesticide testing occurs at least on an annual or bi-annual basis. We also restate our position that the frequency of compliance testing be based on the volume of organic production. Although sliding certification fee structures are included in this proposal based on production volume, there are no explicit requirements with regard to pesticide residue testing.

Keith Jones
Program Manager
National Organic Program
USDA - AMS - TMP - NOP
Room 2945 - South, Ag. Stop 0275
POB 96456
Washington D.C. 20090-6456

Attn. Docket No. TMD-00-02-PR

Dear Mr. Jones,

I am pleased to transmit to you the comments of Consumers Union, publisher of Consumer Reports, on the USDA proposed rule on the National Organic Program.

Sincerely,

Urvashi Rangan
Research Associate

Enc.