SOE Proposed Rule Series - Post #4: Labeling of Nonretail Containers
The purpose of this blog post is to briefly summarize one part of the Strengthening Organic Enforcement (SOE) proposed rule, provide a preliminary analysis of the provisions, and to identify areas that require further clarification. This is the fourth in a series of blog posts that the National Organic Coalition is publishing to provide information about the SOE proposed rule.
The SOE proposed rule will update and modernize the organic regulations to strengthen oversight and enforcement and reduce fraud in the organic marketplace. NOC has strongly advocated for these changes. The proposed rule is published in the Federal Register and USDA has created a SOE proposed rule webpage with details about the proposed rule and how to comment. Comments are due October 5, 2020.
This blog post will focus on Labeling of Nonretail Containers, which is covered on pages 46 to 51 of the official version of the proposed rule (pgs. 28 to 30 of the draft proposed rule).
The first blog post in NOC’s SOE Proposed Rule series provides an overview of the proposed rule and summarizes the 13 provisions included in the rule.
The second blog post summarizes and provides analysis for two parts of the proposed rule: 1) Exemptions from organic certification and; 2) Unannounced Inspections.
The third blog post summarizes and provides analysis for the section of the proposed rule focused on Supply Chain Traceability & Organic Fraud Prevention.
NOTE: NOC has not yet adopted formal positions on this complex proposed rule. What follows is our preliminary analysis. We continue to solicit input from our Members on these topics as we develop our written comments to the USDA. We also welcome input from other organic stakeholders and hope you will contact us if you have questions or would like to share your analysis with us.
Labeling of Nonretail Containers
Summary of Provisions
Currently, organic regulations require that nonretail containers used to ship or store organic products contain only a production lot number. The lack of additional information, including the identification of the product as organic, makes traceability in the organic supply chain more difficult and can increase vulnerability to fraud, fumigation of organic products with prohibited substances during border crossings, and comingling of conventional and organic products: especially when nonretail containers are used to store or ship unlabeled, unpackaged products.
If implemented, this section of the proposed rule would require that two additional pieces of information be included on nonretail containers: (1) a statement identifying the product as organic; and (2) the name of the certifying agent that certified either the producer of the product, or, if the product is processed, the last handler that processed the product. In addition, the proposed rule would add the option to include the name of the certified operation that produced or handled the product to the nonretail container. If implemented, these provisions will also help link the organic product to the corresponding organic certificate and/or import certificate.
The new requirements would apply to small nonretail containers such as produce boxes, totes, harvest crates, boxes, cartons, etc. The new requirements would not apply to large nonretail containers used to transport or store organic products such as trailers, tanks, railcars, shipping containers, grain elevators, vessels, cargo holds, barges, etc. The associated documents, however, would need to clearly identify the production lot number, that the product is organic, and name of the certifying agent for the producer of product or last handler.
Preliminary Analysis
NOC supports the new regulatory requirements for additional information on nonretail containers, but we would like to see the USDA Agricultural Marketing Service (AMS) go further in what they are requiring. The proposed rule states at §205.307 (b) that nonretail containers may, but are not required, to display:
(3) The name and contact information of the certified producer of the product, or if processed, the last certified handler that processed the product;
NOC recommends making this a requirement, rather than an option, because we believe this information is necessary for inspectors and staff at certification agencies who are tasked with conducting trace-back and supply chain audits. In addition, NOC believes that “special handling instructions needed to maintain the organic integrity of the product” should also be required on nonretail containers. The proposed regulation allows but does not require nonretail containers to display special handling instructions. This provision is necessary to prevent fumigation with prohibited substances when organic products cross borders. The current regulatory language regarding special handling instructions is insufficient to articulate clearly what type of information is necessary. NOC recommends that the regulatory language include the additional phrase (bold):
(1) Special handling instructions needed to maintain the organic integrity of the product, such as the words “do not fumigate with substances prohibited under the USDA organic regulations”;
This instruction not to fumigate organic products is one example of the type of special handling instructions that nonretail containers should display. Because there are many other necessary types of special handling instructions, AMS should consider defining the term “special handling instructions” in 205.2 and should also create a guidance document to provide information to certifiers, organic inspectors, and operations regarding which special handling instructions should be displayed on nonretail containers.
NOC recommends that AMS explore the possibility of adding country of origin to the information displayed on nonretail containers in §205.307 (a), which will also assist with trace-back and supply chain audits.
NOC disagrees that it is impractical to label large nonretail containers. While being mindful of practicalities, NOC recommends that AMS require labeling of large nonretail containers with the words “organic” and “do not fumigate.” AMS should explore requiring that labels on both large and small retail containers display these two pieces of information in local languages as well as English to ensure that all those who handle organic products are aware of the necessary handling requirements and to prevent comingling.
Requested Clarifications
The explanatory text that accompanies the regulatory changes in the proposed rule makes it clear that the requirements for nonretail containers apply only to small containers. However, this is unclear in the regulatory text itself. AMS must clarify in the regulatory language the distinction in labeling requirements for small and large containers.
AMS should also clarify how the provisions in the proposed rule pertaining to nonretail containers, in addition to the requirements for import certificates, will address the 2017 OIG report finding that “AMS has not established and implemented controls at U.S. ports of entry to identify, track, and ensure treated organic products are not sold, labeled, or represented as organic.” NOC is unclear how the provisions in the proposed rule will ensure that organic products are not fumigated with prohibited substances or that organic products that are fumigated with prohibited substances are not sold in the marketplace as organic.