The Federal Trade Commission (FTC) and U.S. Department of Agriculture (USDA) have released an August 10, 2016, joint report examining consumers’ perceptions of “recycled content” and “organic” claims, especially for non-agricultural products and services. Using data from Internet-based questionnaires completed by 8,016 respondents, the study sought to determine whether consumers view products marketed with such claims as having “particular environmental benefits or attributes.” Among other things, FTC and USDA asked consumers to assess the accuracy of recycled content and organic claims when applied to products made with varying types of recycled materials and varying proportions of “man-made” substances. While the agencies reported no significant difference among consumer perceptions of products that used either pre- or post-consumer recycled materials, “a significant minority of respondents disagreed that the organic claims accurately describe the product” when a small percentage of materials (i.e., “less than 1%; 1% to 5%; and 5% to 10%”) was…
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A California federal court has invalidated an amended section of the Organic Foods Production Act that allowed organic producers to use compost materials containing synthetic fertilizers, finding the U.S. Department of Agriculture (USDA) violated the Administrative Procedures Act (APA) by failing to subject the amendment to public notice and comment before it took effect. Ctr. for Envtl. Health v. Vilsack, No. 15-1690 (N.D. Cal., order entered June 20, 2016). Details about the complaint appear in Issue 562 of this Update. In 2011, USDA issued guidance on the agency’s position allowing the use of fertilizer and compost containing unapproved synthetic materials in the production of organic food. The plaintiffs, three environmental groups, argued that the guidance was a legislative rulemaking—thus triggering requirements of public notice and comment under the APA—while USDA asserted that it had merely clarified a preexisting rule, not changed it. The court sided with the environmental groups, finding the…
The Organic Consumers Association (OCA) has filed lawsuits against The Hain Celestial Group, Inc. and The Honest Co., Inc. alleging the companies’ “organic” infant formula products contain multiple substances prohibited for use in organic food by the U.S. Department of Agriculture (USDA). Organic Consumers Assoc. v. Hain Celestial Grp., Inc., No. 16-2533 (D.C. Super. Ct., filed April 5, 2016); Organic Consumers Assoc. v. Honest Co., Inc., No. SC125655 (Cal. Super. Ct., Los Angeles Cty., filed April 6, 2016). The lawsuit against Hain Celestial challenges the label claims of its Earth’s Best products, which the complaint argues are all labeled organic despite none meeting federal organic regulations. “Behind the picturesque red barn of the Earth’s Best logo displayed on each of the Falsely Labeled Products lies a chemical soup of synthetic, toxic, and hazardous ingredients,” the complaint argues. “For example, of the 48 ingredients in Earth’s Best Organic Infant Formula, more than…
The Alliance for Natural Health (ANH) has released a white paper that allegedly identifies glyphosate residue in common breakfast foods, including “flour, corn flakes, bagels, yogurt, potatoes, organic eggs, and coffee creamers.” Part of a campaign seeking to prohibit the herbicide, the white paper purportedly relies on the results of ELISA (enzyme linked immunosorbent assay) tests commissioned from an independent laboratory, which reported that 10 samples taken from instant oatmeal, eggs, bagels, and other breakfast products contained glyphosate in detectable amounts. In particular, ANH notes that organic cage-free eggs exceeded the U.S. Environment Protection Agency’s (EPA’s) tolerance level for glyphosate residue. The white paper reflects a new trend of consumer groups financing independent laboratory studies to support their campaigns. According to an April 21, 2016, Beyond Pesticides blog post, Moms Across America commissioned a report on glyphosate in California wine that allegedly found glyphosate residue in all samples tested. …
Public-interest group Cornucopia Institute has filed a lawsuit against Tom Vilsack in his capacity as Secretary of Agriculture alleging that he and the U.S. Department of Agriculture (USDA) violated the Organic Foods Production Act of 1990 by appointing “unqualified individuals” to the National Organic Standards Board (NOSB), which develops a list of synthetic substances allowed in the production of organic food, the National List of Allowed and Prohibited Substances. Cornucopia Inst. v. Vilsack, No. 16-0246 (W.D. Wis., filed April 18, 2016). Federal law requires the composition of the NOSB to be “balanced and independent,” Cornucopia argues, but USDA “inappropriately influenced” the board in a number of ways, including (i) disbanding its Policy Development Subcommittee, (ii) allowing the self-appointment of the board’s co-chairperson, and (iii) removing the board’s ability to set its own work plan. “USDA’s unlawful meddling with the composition and rules governing the NOSB has created a NOSB hostile…
The U.S. Department of Agriculture’s (USDA’s) Agricultural Marketing Service (AMS) has proposed amendments to organic livestock and poultry production requirements to clarify “how producers and handlers must treat their livestock and poultry to ensure their health and well-being throughout life.” Based on recommendations from the National Organic Standards Board, the draft rules also specify “which physical alterations are allowed and prohibited” and establish “minimum indoor and outdoor space requirements for poultry.” In particular, the proposed amendments provide for “a feed ration sufficient to meet nutritional requirements, including vitamins, minerals, protein and/or amino acids, fatty acids, energy sources, and fiber (ruminants), resulting in appropriate body condition.” They also limit physical alterations to those performed only at “a reasonably young age, with minimal stress and pain and by a competent person,” and only in cases determined to “benefit the welfare or hygiene of the animals, or for identification purposes or safety.” In…
The U.S. Department of Agriculture’s National Organic Program (NOP) has published revised National List Petition Guidelines for requesting amendments to the National List of Allowed and Prohibited Substances (National List). According to NOP, the National List not only identifies “the synthetic substances that may be used and the non-synthetic (natural) substances that may not be used in organic crop and livestock production,” but designates “a limited number of non-organic substances that may be used in or on processed organic products.” Clarifying the petition process as well as “the information to be submitted for all types of petitions requesting amendments to the National List,” the guidelines address, among other things, (i) who can submit a petition, (ii) what types of substances can be petitioned, and (iii) the criteria by which the National Organic Standards Board (NOSB) evaluates petitions. These criteria include: (i) “the potential of the substance for detrimental chemical interactions…
The U.S. Department of Agriculture’s (USDA’s) Agricultural Marketing Service has completed the 2016 sunset process for five synthetic and two non-synthetic (natural) substances on the National List of Allowed and Prohibited Substances that governs the use of synthetic and nonsynthetic substances in organic production, processing and handling. Per the National Organic Standards Board’s recommendations, AMS has renewed approvals for the following synthetic substances used in organic crop production: (i) ferric phosphate for use as slug bait; and (ii) hydrogen chloride for delinting cotton seed for planting. It has also renewed approvals for the following non-agricultural ingredients used in or on organic products: (i) L-malic acid; (ii) any food grade bacteria, fungi, and other microorganism; (iii) activated charcoal from vegetative sources, for use only as a filtering aid; (iv) peracetic acid/peroxyacetic acid when used in wash and/or rinse water according to Food and Drug Administration limitations, for use as a sanitizer…
An online campaign launched by Consumers Union asks, “Have you ever quickly selected one box of crackers over another because the box said it was ‘natural’? Food companies know you probably have. They also know they can slap the word ‘natural’ on just about anything.” The advocacy group urges consumers to sign its petition urging the U.S. Food and Drug Administration (FDA) to prohibit use of the term “natural” or take action to define it. Findings of a December 2015 Consumer Reports survey reportedly indicate respondents want stricter standards for natural and organic labeling on meat, poultry and packaged and processed foods. Issue 592
The National Organic Program has issued final guidance for accredited certifying agents and certified and exempt organic operations to clarify federal regulations about substances used in the post-harvest washing, packing and storage of organic products. The document specifically addresses: “(1) What substances may be used for post-harvest handling; (2) the difference between ‘post-harvest handling of raw agricultural commodities’ and ‘further processing’; and (3) the regulatory requirements for facility pest management.” See Federal Register, January 15, 2016. Issue 590
