The U.S. Department of Agriculture’s (USDA’s) National Organic Program (NOP) has announced that its 2006 decision approving the fortification of organic infant formula and organic milk products with synthetic omega-3 fatty acid DHASCO (DHA) and omega-6 fatty acid ARASCO (ARA) resulted from an incorrect interpretation of nutritional guidelines and NOP board recommendations. Thus, DHA and ARA, present in 90 percent of organic infant formulas, will no longer be permitted in foods certified as organic, and NOP plans to issue draft guidance, subject to a 60-day public comment period, to “provide a transition time for businesses to reformulate products to comply with the regulations.”

Organics watchdog Cornucopia Institute recently re-filed a complaint with the NOP contending that the use of DHA and ARA in organic infant formulas and organic dairy foods constitutes a possible violation of NOP regulatory standards. The institute claimed that a former NOP director overruled the determination of the career staff that the use of DHA and ARA was illegal and did so after contact with an industry lobbyist, who reportedly told The Washington Post that he communicated with the director, but that the back-and-forth was simply routine. According to institute information on the synthetic additives, DHA and ARA are nutritional oils grown and fermented from algae and soil fungus. Touted by industry as a benefit to infant cognition and eyesight, the additives, which are extracted with hexane, a neurotoxic chemical, have reportedly been linked to serious illness in some infants who purportedly experienced acute dehydration from dangerous vomiting or diarrhea.

The institute has also apparently asked the Food and Drug Administration to revoke the generally recognized as safe designation for the additives. In the meantime, the company that makes DHA and ARA has reportedly indicated that it will petition NOP to allow the fatty acids in organic food. According to a Martek Biosciences Corp. spokesperson, “Our hope is that this can be done before the additives are phased out so there are no interruptions. There is no organic alternative to these fatty acids and we firmly believe that DHA and ARA are important to health.” See The Wall Street Journal, April 26, 2010; USDA Press Release and Cornucopia News, April 27, 2010; The Washington Post, April 28, 2010.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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