In this article, P. Mohan Chandran who is currently pursuing M.A. IN BUSINESS LAWS, from NUJS, Kolkata, discusses Legal requirements and restrictions on labeling a product ‘Organic’.

It is an established fact that the food you choose affects your family and shapes their eating habits. Shopping can be challenging when we all come across food labels in several sizes and forms on the packaging of goods, in the ingredient list, or on stickers. The ‘Certified Organic’ label enables you to make informed decisions at the farmers’ market or the supermarket. The risk to exposure of pesticides, antibiotics, hormones, and resultant cancer reduces when you and your family eat organic food, which promotes the development of long-lasting, good eating habits.

The swift pace of growth of organic products continues across the U.S. as organic products become a household benchmark for 81% of families in the country. In 2015, the organic sector witnessed a growth of 11%, and the organic marketplace is projected to continue growing with increasing demand for organic products (Refer Table-1).

Source: www.ccof.org

To provide a focused and effective development of organic agriculture and quality products, the Ministry of Commerce and Industry (MCI), Government of India, launched the National Program on Organic Production (NPOP) in the year 2000. NPOP was notified in October 2001 under the Foreign Trade & Development Act. The NPOP is developed and implemented by MCI as the apex body, which established a National Steering Committee for the NPOP (NSCOP). The NSCOP comprises members from the MCI, the Ministry of Agriculture, the Agricultural and Processed Food Products Export Development Authority (APEDA), the Coffee, Spices and Tea Boards, and other government and private organizations associated with the organic movement.

The Indian organic program is modeled after the International Federation of Organic Agriculture Movements (IFOAM) Basic Standards for Organic Production and Processing, the Codex Alimentarius Guidelines and the EU Regulation 2092/91.

What is ‘Organic’?

The term ‘organic’ was first used by Northbourne, in 1940, in relation to farming, in his book ‘Look to the Land’.

Organic agriculture reinvigorated as an eco-agriculture in the 1970s and institutional strengthening and diversity became a part of the movement. Formation of IFOAM in 1972 indicated that the movement has matured and that it is going to strengthen and carve a niche for itself around the world of agriculture. Explosive growth of organic agriculture occurred only in the 1990s.

The IFOAM definition of organic agriculture is based on:

• The principle of health
• The principle of ecology
• The principle of fairness and
• The principle of care.

Organic food is produced through the adoption of farming methods that avoid the use of human-made fertilizers and pesticides, growth regulators and additives. Any product manufactured from genetically-modified organisms (GMOs) are barred from being classified as ‘organic.’ In today’s terminology, organic is a method of farming system that primarily aims to cultivate the land and raise crops in a way that keeps the soil alive and in good health by use of organic wastes – crop, animal and farm wastes, aquatic wastes – and other biological materials, along with beneficial microbes, i.e., bio-fertilizers, to supply nutrients to crops for improved sustainable production in an eco-friendly environment, devoid of pollution.

Sewage sludge, bioengineering, ionizing radiation, and most synthetic pesticides and fertilizers cannot be used in organic production. Organic meat, poultry, eggs, and dairy products are produced from animals that are fed 100% organic feed, without administering antibiotics or growth hormones, and raised in natural behavioral conditions. With regard to land, certified organic produce is grown on soil that has been devoid of banned substances for three years prior to harvest to ensure prevention of contamination of crops. By focusing on the use of renewable resources and conservation of soil and water, organic farmers strengthen and sustain the environment for future generations.

Moreover, national organic standards (NOS) also include regulations for organic processed products, including non-usage of artificial preservatives, flavors, and dyes. Organic ingredients are required; however, the National List contains some exemptions such as baking soda and yogurt enzymes. National Organic Program (NOP) standards include specific labeling rules for both produce and processed goods.

Regulation of the term ‘Organic’

Several major developments in the field of standards and regulations occurred in 2009. The new EU regulation on organic production and the Canadian organic standard came into effect. Moreover, the Australian domestic organic standard was also implemented. Canada and the U.S. concluded the world’s first fully reciprocal agreement between regulated organic systems, and the EU established procedures for approving certification bodies from outside the EU. These developments are expected to ease trade in organic products and boost the future growth of the sector. The number of countries with regulation of organic standards has risen to 73, while 16 countries are in the process of drafting legislation.

United States (U.S.)

The US Department of Agriculture (USDA) organic products are strictly regulated. They should have strict production and labeling requirements and the organic products must meet the following requirements:

• Must be produced without prohibited methods such as genetic engineering, ionizing radiation, or sewage sludge.
• Must be produced using permitted substances as mentioned in the National List of Allowed and Prohibited Substances.
• Must be supervised by a certifying agent authorized by USDA NOP, following all USDA organic regulations.

India

The use of the ‘Indian Organic’ logo is regulated by Section 6 of the NPOP. This logo may only be used on products that have been duly certified by accredited inspection and certification agencies as satisfying all organic standards prescribed in the NPOP (sec. 6.1). Although the use of certifiers’ mark is voluntary, it is mandatory to place the ‘Indian Organic’ logo on all certified organic products originating from India (NPOP, sec. 4.A.12).

What does labeling of a product as ‘Organic’ mean?

In the U.S., when a food or beverage product is labeled as ‘organic,’ it means that the product has been grown, produced, examined, and certified to be following the organic standards as mandated by the NOP, a program of the USDA.

Only the USDA can authorize a company to market and label its food/beverage as organic. If a company is authorized to label a product as USDA Organic, it implies it has met the standards of USDA NOP, which include the following:

• Pesticide-Free: Foods are produced without the usage of most conventional pesticides.
• Fertilizer-Free: Foods are produced without the usage of fertilizers made with synthetic ingredients or sewage sludge.
• Bioengineering & Radiation-Free: Foods produced are devoid of bioengineering or ionizing radiation.
• Antibiotics & Growth Hormone-Free: Organic meat, poultry, eggs, and dairy products from animals must not contain antibiotics or growth hormones.
• Sustainable Practices: The production process must employ renewable resources and conserve soil and water to improve environmental quality for succeeding generations.

Distinct Organic label statements for different levels of Organic

There are different organic label statements for different levels of organic foods as mentioned below:

• ‘100% Organic’: 100% of ingredients are organic, with 100% organic processing.
• ‘Organic’: 95% or more of ingredients are organic, some chemical additives approved by USDA may be used in processing.
• ‘Made with Organic Ingredients’: Certain ingredients are organic. This label statement is not a USDA standard labeling statement and cannot be used outside the ingredients panel on the label. However, it can be made if a certifying agent approved by the USDA has verified the claim of some ingredients as organic.

It is necessary that the product must be labeled with the correct organic statement. Before starting the usage of the term ‘organic’ on a product label sold in the U.S., the USDA must give your business the official certification and approval.

Legal requirements for Organic labels

If a producer/seller wants to label their business products as ‘organic’, they need to be certified first and must fulfill the requisite standards that apply to organic products in their respective country and comply with consumer law. However, a business cannot label a product ‘organic’ if it does not comply with the strict criteria as set by the law in their respective countries. Businesses that label their products as ‘organic’ should be able to verify their claims, whenever questioned so by consumers.

The certification can be obtained with the completion of applications, audit procedure, and the process of getting approval for organic labeling. After certification, producers can legally label their products with an ‘organic’ symbol, logo or trademark to indicate such status. Labels such as ‘100% organic,’ ‘made using organic ingredients’ or ‘certified organic’ target those customers who are buying the product for its organic status as much as for the specific product. When products are labeled ‘organic,’ sellers know that consumers find it a very attractive proposition.

AUSTRALIA

In Australia, the prescribed standard for organic products is determined by Australian Standard (AS 6000). This guideline was developed with a view to standardize practices within the organic industry. It aims to operate as a standard yardstick across Australia that regulates how people can grow, produce, distribute, market and label organic products. Through a uniform regulatory mechanism, consumers can comfortably distinguish whether a product is organic or not, without confusion. A seller of an organic product should ensure that his operations are compliant with this standard, while a buyer of organic products should watch out for the label that mentions whether the product complies with the AS 6000.

Certification is provided by several different private organizations in Australia that are accredited by the Department of Agriculture, Fisheries and Forestry. The consequences for falsely labeling products as ‘organic’ when they are not certified can be quite serious. The Australian Consumer Law (ACL) protects consumers in Australia from false or misleading representations made by sellers. Consumers have every right to know whether what they are buying is organically sourced and produced, be it from an ethical standpoint, or health or religious reasons.

UNITED STATES (U.S.)

Certified organic foods are manufactured in accordance with the federal standards determined by the USDA NOP. These standards were followed in 2002 after the Organic Foods Production Act of 1990 and continue to be interpreted and developed by the National Organic Standards Board, a federal advisory committee appointed by the Secretary of Agriculture. Organic standards comprise many factors such as soil quality, animal raising, pest and weed control, and use of input materials.

Apart from determining requirements for growing, processing and handling organic agricultural products, the NOP also sets labeling requirements for such products. Labeling requirements are based on the percentage of organic ingredients in a product. Products labeled ‘100% organic’ should contain ingredients and processing aids – excluding water and salt – that are only organically produced. Any other ingredients or additives are not permitted.

Products labeled ‘organic’ should contain a minimum of 95% organically produced ingredients (excluding water and salt). Any residual ingredients should comprise non-agricultural substances that are included on the NOP National List of Allowed and Prohibited Substances.

Products that fulfill either of these labeling requirements may display the necessary phrases, as well as the percentage of organic content, on the product’s primary display panel. Organic products bearing such labels should be grown, handled and processed without the use of pesticides or other synthetic chemicals, irradiation, fertilizers made with synthetic ingredients or bioengineering. The USDA seal and the organic certifying agent seal/mark may be displayed on product packages and in advertisements.

To use the phrase ‘made with organic ingredients’ and mention up to three of the organic ingredients or food groups on the primary display panel, processed products should contain minimum 70% organic ingredients. For instance, a soup produced with minimum 70% organic ingredients and only organic vegetables may claim ‘soup made with organic peas, potatoes, and carrots’ or ‘soup made with organic vegetables.’ Processed products containing below 70% organic ingredients cannot use the term ‘organic’ anywhere on the primary display panel. However, they can identify specific ingredients that are organically produced on the ingredients statement on the information panel.

Akin to other organic products, processed products labeled ‘made with organic ingredients’ cannot be produced using any processes disapproved by the NOP. The percentage of organic content and the certifying agent’s mark may be used on the primary display panel. However, the USDA seal cannot be used anywhere on the package.

The NOP does not have any limitations with respect to the use of other truthful labeling claims such as ‘no drugs or growth hormones used,’ ‘free range’ or ‘sustainably harvested.’

The label ‘organic’ can be used only by agricultural products that achieve organic certification. Such products include foods and beverages such as cheese, chocolate, cookies, juices, meats, milk, pasta, poultry, prepared sauces, soups, wines and alcoholic beverages, etc. When made of organically grown natural fibers, fiber products such as clothing, bedding, and tablecloths can also be labeled ‘organic’.

INDIA

In India, section 3.5 of the NPOP lays down the general principles, recommendations and specific requirements for the use of organic labeling and claims. The labeling should convey unambiguous and accurate information on the product’s organic status. Following closely the IFOAM Basic Standards, four categories of products are identified for labeling purposes based on their organic composition:

• Single-ingredient products with 100% organic: Raw or processed agricultural products containing 100% certified organic ingredients (excluding water and salt, but including additives) may be labeled ‘produce of organic agriculture’ or such similar description.
• Multi-ingredient products with minimum 95% organic ingredients: Raw or processed agricultural products containing a minimum of 95% certified organic ingredients (by raw material weight, excluding water and salt, but including additives) may be labeled ‘certified organic’ or such similar description.
• Multi-ingredient products with minimum 70% organic ingredients: Raw or processed agricultural products containing between 70% and 95% certified organic ingredients (by raw material weight, excluding water and salt, but including additives) may be labeled ‘made with organic ingredients’ or a description akin to it on the principal organic agriculture and the law display, provided that the proportion of organic ingredients is clearly stated. Such products cannot be simply labeled ‘organic’.
• Multi-ingredient products with below 70% organic ingredients: Raw and processed agricultural products containing below 70% certified organic ingredients may only contain indications that an ingredient is organic on the ingredient list, but cannot be labeled ‘organic’.

In all cases, the person or company legally responsible for the manufacture and processing of an organic product shall be identified and no such product can be labeled as GE (genetic engineering) or GM (genetic modification) free to prevent possible misleading claims about the end-product. Moreover, all raw materials of multi-ingredient products, including additives, should be listed on the product label as per their weight percentage (NPOP, sec. 3.5).

The NPOP accreditation system has been recognized by the USDA as satisfactory to meet the accreditation requirements of the US NOP. This implies that inspection and certification agencies accredited by India’s National Accreditation Body are qualified to certify Indian organic products as compliant with the standards of the US NOP. The USDA seal may be appended to products certified as such, which can then be exported to the US as organic.

Labeling of various Categories of Organic products under National Organic Standards (NOS)

An overview of labeling the various categories of organic products is as follows,

• Primary Display Panel: The part of the package most likely to be seen by buyers at the time of purchase.
• Information Panel: This includes that part of the label of a packaged product that is immediately adjacent to and to the right of the primary display panel as observed by a person facing the primary display panel, unless any other section of the label is designated as the information panel because of package size or its attributes.
• Ingredients Statement Panel: The list of ingredients contained in a product shown in their common and usual names in the descending order of predominance.
• Other Panel: Any panel other than the primary display panel, information panel, or ingredients statement panel.

The certifying agent will review and approve each of the product labels to ensure compliance.

Products labeled as ‘Organic,’ but aren’t

The manufacturer/seller can face serious legal repercussions if products labeled ‘organic’ are, in fact, not organic. Therefore, businesses cannot simply make statements or representations that are incorrect or likely to mislead the consumer’s mind.

The sellers should also be cautious not to copy another product’s ‘certified organic’ logo without their permission. This not only constitutes an infringement of consumer law, but also leads to infringement of someone else’s trademark. Businesses are liable for misleading or deceiving customers even if they didn’t do it deliberately. It is imperative for manufacturers / sellers to ensure compliance with the requisite standards before labeling their products as organic. As a precaution, producers / sellers should keep detailed records of their production processes, farming techniques and ingredients used in case of future disputes.

To sum it up, if a company manufactures a product and wants to claim that the product or its ingredients are organic, the final product needs to be ‘certified.’ If the product is not certified, the company should not make any organic claim on the primary display panel or use the USDA organic seal anywhere on the package. However, there are some operations that are exempted from certification, including organic farmers whose revenues are $5,000 or less. Only on the information panel, the company can identify the certified organic ingredients as organic and the percentage of organic ingredients.

BIBLIOGRAPHY & REFERENCES

1. Annie Gunn, Organic Labelling Legal Requirements, https://legalvision.com.au/organic-labelling-legal-requirements/, August 26, 2016.
2. Get the Numbers on Organic, https://www.ccof.org/sites/default/files/Statistics%202016.pdf, 2016.
3. Elisa Morgera; Carmen Bullon Caro; Gracia Marin Duran, Organic Agriculture and the Law, http://www.fao.org/docrep/016/i2718e/i2718e.pdf, 2012.
4. Labeling Organic Products Factsheet, https://www.ams.usda.gov/sites/default/files/media/Labeling%20Organic%20Products%20Fact%20Sheet.pdf, October 2012.
5. Kginter, How to Get a Certified Organic Product Label (in the USA), http://blog.quicklabel.com/2010/10/how-to-get-a-certified-organic-product-label-in-the-usa/, October 26, 2010.
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8. How is the Term Organic Regulated, https://www.fda.gov/AboutFDA/Transparency/Basics/ucm214871.htm.
9. Organic Labeling Requirements, http://www.nsf.org/consumer-resources/green-living/organic-certification/organic-labeling-requirements.
10. Organic Labeling, https://www.ams.usda.gov/rules-regulations/organic/labeling
11. Electronic Code of Federal Regulations, https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=c4e0df8f46a4f4b6f56d80be31f95ed3&rgn=div6&view=text&node=7:3.1.1.9.32.4&idno=7.
12. Organic Certification and Accreditation, https://www.ams.usda.gov/services/organic-certification.

13. What is Organic? https://www.ccof.org/organic.

14. A.K. Yadav, Training Manual – Certification and Inspection Systems in Organic Farming in India, http://ncof.dacnet.nic.in/Training_manuals/Training_manuals_in_English/Cert_and_Inspection_manual.pdf.