CHICAGO — The US Department of Agriculture National Organic Program (NOP) issued the Strengthening Organic Enforcement (SOE) Act in January after publishing the proposed rule two years earlier. The new rules governing the $57.5 billion organic food industry will close gaps in current organic regulations and build consistent certification practices to prevent fraud and improve the transparency and traceability of organic products.

The rules go into effect March 20. Implementation must be completed within one year.

“This regulation will have significant and far-reaching impacts on the organic sector and will do much to deter and detect organic fraud and protect organic integrity throughout the supply chain,” said Tom Chapman, executive director and chief executive officer, Organic Trade Association, Washington. “Fraud in the organic system — wherever it occurs — harms the entire organic sector and shakes the trust of consumers in organic.”

The rules were necessary because consumers started questioning the truthfulness in organic claims due to a growing number of people making headlines by selling non-organic products as USDA certified. For example, at about the same time the SOE was published, a Minnesota farmer was indicted on charges stemming from a $46 million fraud scheme. The charges allege the farmer cultivated conventional crops using chemical fertilizers and pesticides and falsely provided purchasers with copies of NOP certification.

The SOE aims to prevent such fraud in the future. It also closes loopholes that allowed ingredients that don’t meet NOP standards to infiltrate the supply chain. Key updates include requiring certification of more of the businesses, including brokers and traders, at critical links in organic supply chain.

The SOE also requires organic certificates for all organic imports and creates authority for more robust recordkeeping, traceability practices and fraud prevention procedures.

“The time is now to assess your supply chain and identify uncertified suppliers,” said Liz Figueredo, technical lead, Quality Assurance International, San Diego. “An estimated 1,000 businesses that were exempt under the old regulations now need to be certified, and companies currently certified now need to develop and implement fraud protection plans.”

It’s important to focus on traceability, from raw materials to finished products, said Steven Moore, vice president of food safety, quality, regulatory and innovation, Scoular, Omaha, Neb. He suggested reviewing the NOP handbook and performing an unbiased internal audit of your entire organic management system.

Arnold Coombs, executive director of sales and marketing, Bascom Maple Farms, Alstead, NH, said, “I don’t think that producers who are already USDA certified will have much of a challenge. And I think those of us who are USDA certified are proud of what that means for our product, and we will continue to comply in every way possible to ensure our customers get the products they can trust and deserve.”

Yet, there is work involved for everyone who is part of the organic supply chain. While legitimate businesses are pleased with the efforts to prevent fraud, there is some fear it will burden the supply chain.

“The process across the whole supply chain may become too complex,” said Tania Moreira, senior account manager – west region, AAK USA, Louisville, Ky. “Farmers or processors may not have the infrastructure or resources to be able to comply with all that is required. This could decrease organic supply and increase prices.”

Michael Ivey, national sales director, Butter Buds Inc., Racine, Wis., said, “We’ve already started to put many of these practices in place, but it has taken substantial time and resource commitment.”

Coming into compliance

Farming is not easy. Organic farming is even more difficult.

“If you are doing all the right things, you should get paid for it,” said Beth Robertson-Martin, partnership development, Merge Impact, Morrison, Ill. “This is for farmers and brands alike.”

Annie Bouchard, senior brand manager, Fruit d’Or, Villeroy, Que., said, “It takes an incredible amount of work and dedication to grow organic crops at a scale that satisfies market demands. Organic isn’t something that is quick to initiate or get into compliance with if brands are not already.

“Our best recommendation is to work with the companies that have been doing organic from the beginning. We never ‘went organic.’ We started out that way.”

Not every company starts organic or works with only organic, but many have known the rules were coming since the proposal was issued in 2021. They have been working toward and are ready for implementation. Kerry, Beloit, Wis., has new organic-certified taste modulating solutions that meet the new rule.

“We have our taste solutions ready and fully certified, but there is still a lot of work ahead for product developers in making sure their organic products not only meet the new standards but also continue to taste great,” said Otis Curtis, global portfolio director – Tastesense with Kerry. “These updated requirements for organic labeling involve a large number of new actions that US organic product developers must understand and meet. These include calculating the percentage of organically produced ingredients, and filing and having available certified reports for all of these.”

Alina Slotnik, vice president – bioactives, Brightseed, San Francisco, said, “Launching an organic ingredient is no easy feat. We know this firsthand. This new ruling helps affirm that the work we’ve put in to attain this important label designation is worth the effort.”

Brightseed is introducing an organic hemp ingredient for gut health. It is sourced from upcycled hemp hulls and formulated to optimize bioactive content.

“There is an incredible amount of upfront planning required when launching an organic ingredient or product,” Slotnik said. “The earlier brands can anticipate their future demand for organic ingredients, the better. This gives suppliers ample time to ensure their raw material growers and processing facilities are in alignment with organic regulations.”

Implementing the new rules is more taxing for imported ingredients. All businesses importing organic agricultural products to the United States must obtain a NOP Import Certificate from a certifying agent accredited by the USDA or from a foreign certifying agent authorized under an organic trade arrangement prior to their shipment.

“One of the biggest challenges may be centered around assuring applicable documentation, including the newly required import certificates from our US brokers and distributors, as well as maintaining all of the required manufacturer’s documentation and export certificates,” said Tim Sonntag, vice president of quality assurance and regulatory for Wixon, St. Francis, Wis. “It’s not just documentation; it’s proper labeling, too. The information can no longer just be on a spreadsheet.

“Organic product developers also need to ensure the non-retail containers used to ship or store certified organic products are labeled with organic identity, production lot number, shipping information and unique information linking the container directly to the audit trail documentation. Audit trail documentation must identify the last certified operation that handled the organic product.”

The new regulations also directly impact product developers by requiring the calculation of the percentage of organically produced ingredients in a product in order to be compliant with using the USDA organic seal. The label is allowed on packaged products made with 100% organically produced ingredients, and it also may be placed on packaged products containing at least 95% organic ingredients.

The calculation of 95% organic ingredients in the old rules was stated as “dividing the total net weight (excluding water and salt) of combined organic ingredients at formulation by the total weight (excluding water and salt) of the finished product.”

“This never made sense so we used the SOE to provide clarification,” said Gwendolyn Wyard, vice president of regulatory and technical affairs at the OTA. “Most companies were doing it the right way, but now it’s official.”

The new rule reads “dividing the total net weight of the combined organic ingredients at formulation by the total weight of all ingredients of the product at formulation. Water and salt added as ingredients at formulation are excluded from the calculation.”

The 5% of allowed non-organically produced agricultural ingredients and processing aids may be found in Title 7 Part 205 of the Code of Federal Regulations, along with all of the requirements of NOP. What’s key about the 5% is it must be on the list and it is not commercially available in organic form. Commercial availability is defined as available in the form, quality and/or quantity needed.

Cost is not an acceptable reason to use non-organic. Further, a packaged product with the organic seal cannot contain organic and non-organic forms of the same ingredient.

Wyard said the list of ingredients is up for review and there may be some ingredients removed by the end of this year. Those up for discussion include flavors, a number of gums and de-oiled lecithin.