On Jan. 13, 2011, the United States Department of Agriculture (USDA) published a notice of proposed draft guidance for the organic food industry to address the labeling, composition of and use of percentage statements in "made with organic (specified ingredients or food groups)" food claims. Specifically, the draft guidance addresses the following:
- the use of non-organic ingredients in "made with organic (specified ingredients or food groups)" products, and
- the use of statements about the percentage of organic ingredients within the "made with organic (specified ingredients or food groups)" labeling category.
The draft guidance explains the policy of the National Organic
Program (NOP) concerning the portions of the regulations in
question. The NOP invites organic producers, handlers, certifying
agents, consumers and other interested parties to submit comments
about these guidance provisions. Comments must be submitted on or
before March 14, 2011. Comments can be made online at http://www.regulations.gov.
Businesses that operate in the food industry and make organic
claims in advertising, packaging, or on the web should contact
their legal counsel to make sure they are compliant with the NOP
regulations.
According to a notice in The Federal Register, the Organic Foods
Production Act of 1990 (OFPA), 7 U.S.C. Section 6501, et seq., as
amended, and the NOP regulations implemented in 7 CFR part 205,
National Organic Program (NOP) Final Rule, regulate the production,
handling, processing, and labeling of all raw or processed
agricultural products to be sold, labeled, or represented as
organic in the United States.
The NOP regulations (Sec. Sec. 205.303(a) and 205.304(a)) state
that products in packages described in Sec. Sec. 205.301(a), (b),
and (c), may display the terms, "100 percent organic,"
"organic," and "made with organic (specified
ingredients or food group(s))," respectively, as applicable.
These provisions also state these products may display the
percentage of organic ingredients in the product.
Accordingly, the NOP has received questions about whether a
percentage statement may appear without a product composition
statement. For example, may a soup label state, "75 percent
organic ingredients" on the principal display panel without a
"made with organic vegetables" statement?
NOP's Policy Statement
The "made with organic (specified ingredients or food
group(s))" statement is essential to clarify the product
category and may be used without the percentage statement. The
statements, "made with organic ingredients," or
"made with (insert number)% organic ingredients," do not
comply with Sec. 205.304(a)(1)(i) or (ii) and are not acceptable
variations of a "made with organic" statement. The
correct formats for "made with organic" statements are:
"made with organic (specified ingredients); or (specified food
groups)," provided that the statement does not list more than
three organically produced ingredients or food groups.
A percentage statement must be accompanied by the statement,
"made with organic (specified ingredients or food
group(s))" when displayed on packages of products in this
category, which are described in Sec. 205.301(c). As written in the
NOP regulations, the section heading for Sec. 205.304,
"Packaged products labeled "made with organic (specified
ingredients or food group(s))," implies that a "made with
organic (specified ingredients or food group(s))" statement is
present on the product, and, therefore, the product must contain at
least 70 percent certified organic agricultural products. The
"made with (specified ingredients or food group(s))"
statement is particularly important when the product contains 95
percent or more organic ingredients; without it, a consumer cannot
determine the appropriate product category and could be misled to
assume that the product qualifies for the "organic"
labeling category.
A claim of "100% organic" should only be used for
products that qualify under Sec. 205.301(a). The "100%
organic" claim refers to a particular labeling category within
the NOP regulations and should not be used in combination with
other NOP labeling categories. For example, a "made with 100%
organic blueberries" label may lead consumers into thinking
that the "made with" product qualifies for the "100%
organic" category. In reality, a muffin made with 100%
certified organic blueberries may not, as a whole, qualify as
organic. The purpose of this draft guidance is to clarify
regulations and to avoid misleading organic claims
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.