Is your business dealing with issues from the USDA Organic & GMO Counsel? Organic and non-Genetically Modified Organisms (GMO) marketing has been around for a long time. However, not all of it is truthful or legal and the federal government has the right to regulate these claims.
The United States Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) regulates organic products and GMO labeling. If you want to market food or supplement as “organic” or “non-GMO” you will need to comply with AMS regulations and policy.
Failure to comply can lead to government enforcement and private litigation. Hiring an attorney experienced with organic and AMS enforcement actions can help you navigate the system and stay in the organics and non-GMO markets.
The AMS regulates organic products under its National Organic Program (NOP). And, while the NOP has the authority to take enforcement action (along with the California Organic Program), the program is actually administered primarily through private third-party organic certifiers.
To produce and sell a product as organic in the United States, the manufacturers and handlers of the product must be certified by an NOP-approved third-party certifier. These certifiers charge fees, often proportionally to product sales.
The certifier will determine whether product labels, production, and cultivation meet NOP stringent organic standards. See at 7 C.F.R. § 205.
“100% Organic”
Products that contain only organic ingredients, excluding water. These products can bear the USDA Organic Seal.
“Organic”
Products that contain only organic ingredients, in addition to NOP-approved ingredients that are not available in organic form. These products can also bear the USDA Organic Seal.
“Made with Organic”
Products that contain at least 70% organic ingredients. These products may not bear the USDA Organic Seal.
“Less than 70% Organic”
Products that contain less than 70% organic ingredients. These products cannot use the USDA Organic Seal and can only note the organic status of ingredients in the product’s ingredient list.
The AMS also administers the law controlling GMO labeling. Congress gave the AMS authority over GMO labeling in 2016 with the passage of the National Bioengineered Food Disclosure Law.
Congress did this, in part, to create a unified national standard and prevent states from developing multiple GMO (and possibly contradictory) labeling requirements.
The new law has changed the terminology from Genetically Modified Organisms (GMO) to bioengineered (BE). Under the new rule, foods regulated by the Food and Drug Administration (FDA) must disclose the presence of BE ingredients to consumers.
This can be accomplished on the label with words, AMS-approved symbols, or digitally (e.g., text message, scans). Organic products are exempt from BE disclosure requirements.
NOP – The National Organic Program, a part of USDA-AMS. This program oversees all organic products, product labeling, and national policy. Officers enforce organic requirements and regulate third-party certifiers.
Organic –An agricultural product that complies with the requirements of the Organic Foods Production Act of 1990 and the regulations promulgated by AMS.
Bioengineered –Food that contains genetic material that has been modified through in vitro rDNA techniques and that could not be obtained through conventional breeding or found in nature.
Certifying Agent – A private third-party that NOP has accredited to certify production or handling operations as properly organic.
Your certifying agent can help you through the process of becoming NOP compliant. However, it is important to understand that although you are paying the certifier, they remain an agent of the government.
The certifier is your inspector – not your ally in an investigation. They are not on your side, and when there are serious allegations, they will work with AMS to attack your reputation. You need an attorney as your advocate, to not only file your documents – but to defend your operation, reputation, and profits.
Call us today if you are facing an AMS investigation, suspension action, or fear that you may soon face one.
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