National Organic Program - An Overview

Reviewed October 28, 2007

Background

The practice of producing organically grown agricultural products has existed for several decades in the United States and has evolved from a small-scale and localized system into a highly organized and global production and marketing system. These changes motivated the organic industry to establish uniform standards for organic production and marketing.

Initially, private organizations and some states developed a third-party certification system. This system required that for a producer or processor to be certified as an organic producer or processor, a third party had to determine that the producer or processor had complied with certain requirements. This allowed the producer or processor to represent to consumers that its product had been produced and processed in accordance with that third-party's standards for organic production.

Although this was a positive development for the organic industry, the goal of creating uniform standards for the entire spectrum of organic production and marketing remained unaccomplished because the standards for organic production often differed from one third-party certifier to another, as well from one state to another. Many third parties refused to recognize products that were certified by other certifying organizations because of differing standards, thereby impeding the flow of organic products into the marketplace and across state lines. The inability to adequately prevent instances of fraud was another major impediment.

Congress responded to these problems by enacting the Organic Foods Production Act (OFPA), 7 U.S.C. §§ 6501-6522. OFPA was enacted to create "national standards governing the marketing of certain agricultural products as organically produced products," to assure consumers that "organically produced products meet a consistent standard," and to facilitate "interstate commerce in fresh and processed food that is organically produced." 7 U.S.C. § 6501. On December 21, 2000, the Agricultural Marketing Service, an agency within the United States Department of Agriculture (USDA), published a final rule, found at 7 C.F.R. Part 205 that implemented OFPA. The combination of OFPA and the final rule created the National Organic Program (NOP). As of October 21, 2002, a producer or handler that sells, labels, or represents agricultural products as organic must comply with NOP.

National Organic Program

Key Definitions

A "producer" is any person engaged in the business of growing or producing food or feed. See 7 C.F.R. § 205.2. A "handler" is any person engaged in the business of selling, processing, or packaging agricultural products but does not include final retailers that do not process agricultural products. An "agricultural product" is any agricultural commodity or product in raw or processed form and includes any commodity or product derived from livestock that is marketed for either human or livestock consumption. See id.

Applicability

Any operation or person that produces or handles organic crops, livestock, livestock products, or other organic agricultural products that are to be sold, labeled, or represented as organic must comply with NOP certification requirements and all other applicable NOP requirements, unless exempted or excluded. Although exempted and excluded operations are not required to comply with NOP certification requirements, they must still comply with other NOP requirements.

Four types of operations are exempted from NOP certification requirements: (1) operations with a gross annual income from sales of organic products totaling $5,000 or less; (2) retail food establishments that handle but do not process organic products; (3) handling operations that handle products containing less than 70% organic ingredients; and (4) handling operations that identify ingredients as "organic" only on the label of packaged products. Two types of operations are excluded from NOP certification requirements: (1) handling operations that only sell organic products that are packaged or enclosed in a container prior to receiving the product and that remain packaged or enclosed without any further processing while under the control of the handling operation, and (2) retail food establishments that process raw and ready-to-eat food from products previously labeled as organic.

Organic Production and Handling Standards

A producer or handler that sells, labels, or represents products as organic must comply with NOP organic production and handling requirements. The production and handling standards set forth requirements for organic system plans, crop production, livestock production, and organic handling.

An "organic system plan" is "[a] plan of management of an organic production or handling operation that has been agreed to by the producer or handler and the certifying agent and that includes a written plan concerning all aspects of agricultural production or handling . . . ." Id. at § 205.2. The plan must describe the practices and procedures that the producer or handler will implement and maintain in its operation and must explain how often these practices and procedures will be performed. It must also describe the recordkeeping system that a producer or handler will use in its operation to ensure compliance with the recordkeeping requirements for certified operations.

The organic production and handling requirements that govern crop production include land management; soil fertility and crop nutrient management practices; seeds and planting stock use; crop rotation; crop pest, weed, and disease management; and the harvesting of "wild crops." The requirements that govern livestock production cover livestock origins, livestock feed, livestock health care practices, and livestock living conditions. The organic handling requirements set forth general standards for the handling of organic products, for managing pests, and for preventing the commingling and contact of organic products with prohibited substances.

Labels, Labeling, and Market Information

NOP sets forth standards, requirements, and restrictions that govern the labeling and use of marketing information for organically produced products. They are designed to prevent abuses in the marketing of organic products and to assure consumers that organic products and ingredients are labeled in a consistent, reliable, and predictable manner. In particular, NOP establishes guidelines that govern the use of the term "organic;" specific labeling categories based on product composition; terms and references that can be displayed in conjunction with each of the labeling categories; methods for calculating the percentage of organic composition in a product; livestock feed labeling requirements; standards for labeling nonretail containers used for shipping and storing organic products; standards for labeling organic products in other than packaged form that are sold, labeled, or represented as organic at the point of retail sale; labeling guidelines for products produced on exempted and excluded operations; and standards governing use of the USDA organic seal on products.

Certification

"Certification" is a certifying agent's determination that an operation has complied with all applicable NOP requirements, which is documented by a certificate of organic operation. NOP defines a "certifying agent" as  "[a]ny entity accredited by the Secretary for the purpose of certifying a production or handling operation as a certified production or handling operation." Id. at § 205.2. NOP establishes general requirements for certification, for submitting an application for certification, for reviewing the application, and for governing the on-site inspections that must be conducted by a certifying agent. NOP also establishes standards for the granting, denying, and continuing of certification.

National List

NOP sets forth in its National List "an itemization, by specific use or application, of each synthetic substance permitted . . . or each natural substance prohibited" in organic production and handling. 7 U.S.C. § 6502(12). The National List is based upon recommendations submitted to the Secretary by the National Organic Standards Board, an entity that assists the USDA Secretary in all aspects of NOP, including developing and amending the National List. The Board is comprised of fifteen members and must include four individuals who own or operate an organic farming operation, two individuals that own or operate an organic handling operation, one individual who owns or operates a retail establishment having significant trade in organic products, and three individuals possessing an expertise in environmental protection and resource conservation. The Board must also include an individual with expertise in toxicology, ecology, or biochemistry and another who is a certifying agent. Any person may petition the Board to consider whether a substance should be listed as allowed or prohibited on the National List.

State Organic Programs

Any state may, subject to certain conditions, create a state organic program (SOP) for production and handling operations within that state. The SOP must comply with all NOP requirements, although it may contain additional requirements that are more restrictive than NOP requirements "because of environmental conditions or the necessity of specific production or handling practices particular to the State or region of the United States." Id. at § 6507(a), (b)(1). Additional requirements must further the purposes of NOP, must not be inconsistent with NOP, and must not be "discriminatory towards agricultural commodities organically produced in other States." Id. at § 6507(b)(2)(A)-(C). A SOP and any amendments to it must be approved by the USDA Secretary before being implemented by the state.