Grow Organic? Have You Read the Proposed Strengthening Organic Enforcement Rule?

Image by U.S. Department of Agriculture, Agricultural Marketing Service, National Organic Program.

This article is not a substitute for legal advice.  See here for the site’s reposting policy.

On August 5, 2020, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published the Strengthening Organic Enforcement (SOE) Proposed Rule. The SOE Proposed Rule, according to the USDA AMS, amends the USDA organic regulations to strengthen oversight and enforcement of the production, handling, and sale of organic agricultural products. The proposed changes may bolster consumer confidence in purchasing organically marketed products since, as was so succinctly stated in this article, “[t]he only assurance the public has that a product is actually organic is a USDA certification label.”  This post will highlight some of the ways the SOE Proposed Rule attempts to improve the veracity of the USDA organic certification label. Comments to the SOE Proposed Rule may be submitted on or before October 5, 2020.

According to the Organic Trade Association, the SOE Proposed Rule “…is the largest single piece of rulemaking since the implementation of the National Organic Program (NOP) regulations. If implemented, this proposed rule will improve organic integrity across the organic supply chain, and transform the oversight and enforcement of organic production worldwide.” The following are some of the ways in which the SOE Proposed Rule will impact organics:

• Reduce the number of uncertified businesses in the organic supply chain The SOE Proposed Rule requires organic certification of businesses that buy or sell organic products and/or negotiate sales of organic products between buyers and sellers. The types of businesses that may need certification include brokers, traders, importers, grain elevators, ports and storage facilities that are processing or altering products (including repack or packaging). The Rule also clarifies organic compliance requirements for exempt businesses such as retail operations and transporters.

• Require the use of import certificates for all imported organic products The SOE Proposed Rule requires the use of NOP Import Certificates, or equivalent data, for all organic products entering the United States. An exporter must request an import certificate from their certifier and the certifier must review the request and issue the import certificate. Importers will have a duty to verify that the shipment matches the associated import certificate and data from the import certificate must be uploaded into the U.S. Customs and Border Protection’s Automated Commercial Environment (ACE).

• Improve supply chain traceability and organic fraud prevention The SEO Proposed Rule will require organic operators to maintain records that document a product’s source and chain of custody across the supply chain. Products will need to be clearly labeled to identify products as organic and monitoring practices used to prevent fraud and verify suppliers and products will need to be documented. Organic accreditors will also be required to describe the procedures they use to identify operations and products at high risk of organic fraud and conduct supply chain audits to verify the origin and chain of custody of high-risk products.

• Standardize requirements for on-site inspections to strengthen organic oversight The SOE Proposed Rule increases the minimum number of unannounced inspections organic certifiers must make to at least 5% of the operations they certify annually. Certifiers will be required to verify that organic products and organic ingredients are traceable from the time of production or purchase to the time of sale or movement of product from the operation and vice versa. The Rule also increases the required qualifications for organic certifiers.

• Clarify annual update requirements for certified operations The SOE Proposed Rule will reduce the paperwork burden for organic operations by requiring that certified operations annually submit revisions to the OSP rather than annually submitting the OSP in its entirety and clarifies that certifying agents must conduct annual inspections of certified operations.

• Strengthen enforcement of NOP The NOP may initiate enforcement action against any person who sells, labels, or provides other market information concerning an agricultural product if such label or information implies, directly or indirectly, that such product is produced or handled using organic methods if the product was produced or handled in violation of the Organic Foods Production Act.

To read more about the SOE Proposed Rule, check out this OTA summary and this comparison table illustrating the differences between the current and proposed organic regulations.

#organics #ALEI #alei #SEO #stregtheningorganicenforcement