The USDA has announced a proposed rule to expand the National Organic Program’s oversight and enforcement of the production, handling, and sale of organic products. The move, which will provide more investigative rigor to the certifying body behind federal recognition of organic products, will provide a stronger regulatory base substantiating the integrity of the organic products that consumers in the U.S. buy.
 
 The proposal, which was published in the Federal Register, was made publicly available earlier this month, and the USDA will be accepting public comment on the proposal through Oct. 5, which must be submitted here. Essentially, the only businesses which will remain exempt from being required to register as USDA organic in order to market products as such will be retailers.
 
“Organic agriculture is one of the fastest growing sectors in the food market,” said Greg Ibach, under secretary for Marketing and Regulatory Programs. “As the organic market has grown, organic supply chains have become more complex. Stronger market oversight is needed to protect farmers and consumers who choose the organic option.”
 
According to the USDA, the revised regulations are intended to reduce the number of uncertified businesses in the organic supply chain, standardize organic certificates, require the use of import certificates for all imported organic products, increase the minimum number of unannounced inspections, increase inspector qualifications, strengthen fraud prevention procedures, and increase data reporting requirements to make it easier to identify and focus enforcement resources on higher-risk locations, activities, and commodities.
 
The proposed regulation would also implement new oversight authority provided in the 2018 Farm Bill. It includes recommendations from the National Organic Standards Board and the Office of Inspector General, and draws from USDA’s experience in enforcing the organic regulations.
 
The Specifics
 
Businesses which will be impacted by the proposed rule essentially include anyone importing or exporting organic foods, buying or selling organic products in non-retail transactions, transports organic products, or negotiates sales between organic buyers and sellers. These businesses will likely need to obtain USDA organic certification, in order to improve farm-to-market traceability of organic products, deter fraud, and improve confidence in the USDA organic label.
 
This proposed rule was first authorized by the 2018 Farm Bill, which directed the USDA to further tighten certification requirements laid out in the Organic Foods Production Act. Only retailers will be exempt from the certification requirement while marketing certain products as organic.
 
Those who do not certify with the National Organic Program may see civil penalties which can be assessed against the marketers of organic products, and, furthermore, the proposed rule may subject those engaged in any fraudulent organic marketing scheme to further penalties, including prison time.
 
The provisions of the new rule would reduce the number of uncertified entities by limiting the types of businesses in the organic supply chain that currently operate without USDA oversight, including importers, brokers, and traders of organic products. Additionally, all organic products entering the U.S. will require National Organic Program (NOP) Import Certificates. The NOP will also have clearer authority to oversee certification agents and their offices, and likewise, certification agencies will be required to notify the NOP prior to opening a new office. Non-retail shipping or storage containers will also be required to have specialized organic handling labels, to further support traceability.
 
Additionally, the rule will establish a minimum number of unannounced inspections of certified operations that must be conducted annually, and will include supply chain audits as part of such inspections. Certificates will also be generated from INTEGRITY, the USDA’s organic integrity database.
 
The rule will also clarify that certified operations only need to submit changes to their organic system plan during annual updates, and clarify that certifying agents must conduct annual inspections of organic operations.
 
Certifying agents will also be subject to specific qualification and training requirements, including minimum education and experience qualifications and continuing education.
 
Conditions by which the USDA can establish, evaluate, and terminate equivalence determinations with the organic programs of foreign governments would also be established.
 
The new rule is intended to clarify requirements to streamline and strengthen enforcement processes. The NOP will notably be able to initiate enforcement action against any violator of the Organic Foods Production Act.
 
There will be additional certification requirements that are specific for organic growers, and, grower certification will be restricted to crop production and handling only, USDA said.
 
The new rule would also establish which method is acceptable for calculating the percentage of organic ingredients in a multi-ingredient product.
 
Lastly, certified organic operations will be required to develop improved recordkeeping, organic fraud prevention, and trace-back audit processes.
The USDA’s Agricultural Marketing Service is requesting comments on a number of topics as well, such as:
 
–       The clarity of the proposed requirements. Can certified operations, handlers, and certifying agents readily determine how to comply with the proposed regulations?
 
–       The implementation timeframe. AMS is proposing that all requirements in this proposed rule be implemented within ten months of the effective date of the final rule (this is also one year after publication of the final rule).
 
–       The accuracy of the estimates in the Regulatory Impact Analysis and Regulatory Flexibility Analysis, which describe the expected costs of this proposed rule on all affected entities and on small businesses, respectively.
 
–       Are there alternatives to regulations, or less stringent requirements, that could achieve the same objectives as this proposed rule?
 
–       How will certifying agents cover the costs of additional actions required under this rule, such as the required unannounced inspections and the issuing of NOP Import Certificates? Will certifying agents charge fees that are consistent for expanded handlers, brokers, importers and exporters?
 
The entire proposal is available on the Federal Register here.