The average consumer likes to think her organic foods are "free" -- free of pesticides and chemicals, free to wander the hills and fields, and free from any re-interpretation by government or businesses.
However, today's global food industry isn't that simple. Case in point: A recent federal court decision could temporarily derail the fast-track growth currently enjoyed by certain segments of the organic category.
At issue are inconsistencies between the National Organic Program implemented in 2002 and the earlier Organic Foods Production Act of 1990. Specifically, NOP allows the use of 38 synthetic chemicals in crop production and food processing. Synthetics aren't necessarily bad, as even some organic advocates will admit. One such substance is baking powder. Another is ethylene, which moderates the ripening of organic pineapples so they don't rot before getting to stores.
The problem is the earlier organic act prohibits the use of these substances. In the most recent round of higher-court rulings, the Court of Appeals for the First Circuit in Boston agreed synthetics should be banned. The decision threatens the labeling of most processed organic food products in today's marketplace.
"NOP regulations have 38 ingredients, such as baking powder, to be used in these organic processed foods on a limited basis after strict review," said Katherine DiMatteo, executive director of the Organic Trade Association, Greenfield, Mass. "Most of the synthetics used up to now would no longer be allowed."
OTA, which has been a vigorous NOP watchdog, is caught in the middle. DiMatteo acknowledged the decision regarding synthetics is potentially disastrous for manufacturers of multi-ingredient products certified as "USDA 100% organic."
"The court decision may hamper [the category] growth rate in the short term," she said in a statement released after the ruling.
"We have members who are dramatically impacted in terms of their businesses, and didn't think it was a good time to make such a huge effect on an industry that was just getting its feet underneath itself," DiMatteo later told WH. "Then there are other people who feel the opposite and that it should have been this way from the beginning. They believe products should not be called organic, but only their ingredients, and the USDA seal shouldn't be used on anything that wasn't 100% organic."
The lawsuit was filed by Arthur Harvey, a 72-year-old Maine organic farmer, who believed USDA's National Organic Program was allowing dozens more synthetics than the law allowed.
"I don't see how they could have made any other decision," he said. "If they did not agree with me, the Act itself did not have meaning. When you pass a law in Congress, you have to make sure everything is crystal clear."
In its ruling, the Court of Appeals stated OFPA does not permit the use of synthetic substances in organic food processing unless other laws, such as the Federal Meat Inspection Act, require it. The court also ruled that conventional agricultural products must be individually reviewed when they are used in products that have 95% organic ingredients -- USDA's threshold for "100% Organic."
Harvey and the organizations that supported his legal action do not want products on retailers' shelves removed. "We are strongly advocating for a reasonable and adequate timeline for implementing the court's decision so that organic family farmers and others have an opportunity to sort out the implications of the decision for their own operations," said Michael Sleigh, director of Sustainable Agriculture Policy at the Rural Advancement Foundation International.
In a related issue, a group of organic food processors and ingredient suppliers want NOP to promote "organic preference" when manufacturers source ingredients. Even though organic ingredients might cost more, it should not be considered when manufacturers need commodities, the group said.
According to commercial availability requirements in OFPA, conventional ingredients can only be used when organic ingredients are not available, but some claim that processors can too easily skirt the rule, particularly with ingredients used in small amounts, such as spices.
OTA has suggested remedies in the wording of the law that would prevent this from happening in the future. As an example, Tom Hutcheson, associate policy director with OTA, said a bean dip made with 69% organic beans, 1% organic tomatoes, and 30% non-organic tomatoes may be labeled now as "made with organic beans and tomatoes."
