ARTICLE
20 January 2011

USDA Issues Draft Guidance for Organic Claims

On Jan. 13, 2011, the United States Department of Agriculture (USDA) published a notice of proposed draft guidance for the organic food industry to address the labeling, composition of and use of percentage statements in "made with organic (specified ingredients or food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.
United States Food, Drugs, Healthcare, Life Sciences

On Jan. 13, 2011, the United States Department of Agriculture (USDA) published a notice of proposed draft guidance for the organic food industry to address the labeling, composition of and use of percentage statements in "made with organic (specified ingredients or food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 Specifically, the draft guidance addresses the following:

  1. the use of non-organic ingredients in "made with organic (specified ingredients or food groups)" products, and
  2. 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The draft guidance explains the policy of the National Organic Program (NOP) concerning the portions of the regulations in question.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.

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