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[The following opens up a new and interesting dimension. It has a number of
problems, however. 1) The authorization for synthetic "ingredients" included
in the rider at 6510, is only implied, and really creates an ambiguity in relation
to 6504. 2) Although the manufacturers would be wise to support Jim's
proposal, I suspect they are too power-crazed to do so. Without the support
of the pay-to-play group, OTA would not endorse the idea. 3) Even if USDA
chose this course, it would be subject to various qualifications that would rob it
of its potential for full transparency. 4) Finally, it would still allow an
ever-increasing flow of synthetics into organic food.
In the long run, it would decrease the distinction between "organic" and "made
with organic", while boosting the importance of "100% organic"---which is
currently seen very rarely in the marketplace. Even if manufacturers were free
to USE synthetics, their inclusion in ingredient statements would serve as a
deterrent. --- A. H.]
* * * * * * *
From: "James Riddle" <jriddle@hbci.com>
Subject: Implementing the synthetics change
Date: Mon, 12 Dec 2005 15:24:22 -0600
To: "Barbara Robinson" <Barbara.Robinson2@usda.gov>
CC: "Mark Bradley" <Mark.Bradley@usda.gov>, "Rigoberto Delgado"
<rigobertodelgado@sbcglobal.net>, "Hubert J. Karreman"
<penndutch@earthlink.net>, "Bea E James" <bea.james@ifhi.com>, "George
Siemon" <george.siemon@organicvalley.com>, "Goldie Caughlan"
<goldie@pccsea.com>, "Gerry Davis" <gdavis@grimmway.com>, "Kevin O'Rell
;" <Kevin.ORell@whitewave.com>, Katherine.Benham@usda.gov, "Arthur
Neal" <Arthur.Neal@usda.gov>, "Keith Jones" <Keith.Jones@usda.gov>,
"Dave Carter" <de.carter@comcast.net>, "'mlacy@arches.uga.edu'"
<mlacy@arches.uga.edu>, "Demaris Wilson" <Demaris.Wilson@usda.gov>,
"bob.pooler@usda.gov ((Bob Pooler))" <bob.pooler@usda.gov>,
lloyd.day@usda.gov, rosiesfarm@mindspring.com, "Andrea Caroe"
<andrea@protectedharvest.org>, dwm@usda.gov, "Kenneth Clayton"
<Kenneth.Clayton@usda.gov>, "Julie Weisman" <julie@flavorganics.com>,
"'NXO3@psu.edu'" <NXO3@psu.edu>
From: "James Riddle" <jriddle@hbci.com>
Dear Barbara,
I hope this finds you well. I was in Indianapolis all last week,
teaching an organic inspector training course. It feels good to be
home.
The more I read the new amendment to OFPA regarding synthetics in
processing, the more I am concerned that there may be some problems
with its implementation. By placing the allowance for synthetics after
the word "ingredients" in 6510, rather than changing it to the more
inclusive word, "substances," Congress has authorized only those
substances that are ingredients to be used during the processing of
"organic " products. It appears that rules can only be written to allow
synthetic "ingredients" on the National List for use in the processing
of "organic" products. Synthetic substances that are not ingredients
have no legal basis to appear on the National List or to be used in the
processing of "organic" products.
Due to the Conference Committee procedure used to get the rider
adopted, there is no legislative history as to the intent or meaning of
the rider. We can only look to the language of OFPA, as amended, and
the ruling from the Circuit Court for guidance.
OFPA section 6504 is an absolute prohibition on the use of synthetics
in either production or handling, "except as otherwise provided in this
chapter." Because of this, a specific statutory authority is needed to
allow any synthetics. The amendment to 6510 now allows synthetic
ingredients on the National List in handing. There is no affirmative
allowance for processing aids, indirect additives, or food contact
substances to be used in processing.
Changes to the language in 6517 don't provide specific
authorization. Congress added "in organic production and handling
operations" to the title of (c)(1), which simply indicates that there
are some exemptions for substances in handling operations authorized --
presumably referring back to the allowance of synthetic ingredients in
6510. Congress removed 6517(c)(1)(B)(iii) which limited exempted
substances used in handling to non-synthetic substances. Again, this
could be seen as needed to conform with the allowance of synthetic
ingredients in 6510. The amendment to 6510 is a limited exception to
the general prohibition of 6504. It allows the use of synthetic
ingredients on the National List to be used in the processing of
"organic" foods - nothing more.
The court decision rested mainly on the old 6510(a)(1) saying no
synthetic ingredients in handling, and said that the National List
provision did not create any ambiguities as to this prohibition, and in
fact supported it. The court implied that non-ingredient synthetics are
not authorized by the fact that the court struck down the regulation
that provided criteria for the use of synthetic "processing aids or
adjuvants," and by the fact that the final judgment applies
explicitly to synthetic ingredients and processing aids. It appears to
me that the rider reverses the judgment as to ingredients but not
processing aids.
What is USDA's current thinking on the matter? As I see it, there are
three possible scenarios for how this might be resolved:
1. USDA moves forward with rulemaking that only allows synthetic
ingredients to be petitioned and placed on the National List, and
reinstates the criteria in 205.600(b), only changing the applicability
of the criteria from "processing aids and adjuvants" to "ingredients."
Under this scenario, USDA would expand the previous "draft" policy
statement on substances subject to National List review so that
synthetic non-ingredients are allowed without having to be on the NL.
This rule would be susceptible to court challenge, and would likely be
challenged.
2. USDA moves forward with rulemaking to place synthetic substances,
including both ingredients and processing aids, on the NL, with the
exception of food contact substances. This would also be open to legal
challenge, since substances that are not ingredients would appear on
the NL.
3. USDA chooses to interpret the word "ingredient" to include, for the
purpose of labeling organic foods, all substances used in or on
processed organic foods. For the labeling of "organic" products, all
substances used during handling would be considered "ingredients" and
therefore must appear on the NL and must be identified on the
ingredient statement. This would be consistent with OFPA, as amended.
It would avoid another court battle and represent a win for consumers,
thus providing good PR for USDA and bolstering consumer confidence in
the organic claim. Processors would get to use the synthetic substances
on the National List that they need, but would have to reveal their
use.
With the language of the amendment, I don't see how synthetic
substances can be used during the processing of organic products unless
they are classified as ingredients and appear on the National List.
I look forward to your response.
Jim
Riddle to Robinson