Inside Organics Blog

Let’s get serious about taking ingredients off §205.606

By Harriet Behar, MOSES

While most organic producers are aware of the National Organic Program’s National List of prohibited natural and approved synthetic substances, many may not be aware of the last section 205.606. This section allows agricultural ingredients that are not organic to be included in “organic” labeled products (usually 95 percent or more organic agricultural ingredients) at any amount if “commercially available” organic ingredients cannot be found. The National Organic Standards Board (NOSB) must place these “not commercially available as organic” agricultural products on the National List.

Organic certification agencies or food processors cannot determine non-commercially available status on their own. Even if the agricultural ingredient is on §205.606, organic processors are supposed to annually prove to their certification agencies that they are searching for the ingredient in an organic form. Since these ingredients are on the National List for five years until they hit their sunset review date, it is important that certifiers continue to require this search in case an organic form becomes available during that five-year period.

If a food manufacturer wants to use a non-organic agricultural ingredient that is not on 205.606—even if it is less than 5 percent of the product—the finished product will move down the organic labeling hierarchy, and the product would be in the “made with organic” category.

When the organic regulation was implemented in 2002, there were quite a few ingredients that were considered not commercially available as organic. Hops was on this list for 10 years, and organic beer was produced with non-organic hops, using this allowance for non-organic ingredients. Hops is no longer on the list, and organic beer now contains this important ingredient in an organic form.

Organic production worldwide has expanded to the point that just about anything that can be grown or produced non-organically, could be produced organically. As the number and toxicity of pesticides, herbicides and fungicides used on non-organic crops increase, it becomes more important that this list of non-organic ingredients allowed in organic foods shrinks at a much more rapid pace than what we are currently seeing.

Consumers expect their purchases to support the human and environmental health benefits of organic farming, and when we allow these non-organic ingredients in organically labeled foods, organic consumers are not getting what they assume they are paying for. In addition, organic farmers are not reaping the benefits of selling more raw organic agricultural products to the marketplace. The National Organic Program must implement systems that would result in more aggressive development of organic equivalents for the non-organic ingredients on §205.606.

Eighteen of the items on §205.606 are colors derived from agricultural products, items such as elderberry juice color or pumpkin juice color. Other items include celery powder, chipotle chile peppers, and whey protein concentrate.

It has been said that listing an item on §205.606 is an advertisement to manufacturers that there is a market for an organic version of this ingredient, but this is somewhat naïve. Buyers, who are now allowed to purchase and use the lower-priced non-organic ingredients, need to do more to stimulate the production of these ingredients as organic—more than just “being ready to buy them” if and when they are produced. In the manufacturing world, most processors will not take the chance on making a new product without having a clear volume price to be paid and a solid buyer contracting to purchase this ingredient. Are there no organic growers and processors of chipotle chile peppers? There is organic celery, what is the barrier to producing organic celery powder? I know many people growing organic elderberries; why aren’t the buyers of the elderberry juice color working with the color manufacturers to source organic elderberries?

The NOSB has reviewed and clarified the protocols for farmers to meet both the letter and spirit of the law when they use non-organic seed in organic production under the “commercial availability” exemption. The same clarification and consistency of implementation has not been done for materials used in processing, which are also subject to a “commercial availability” requirement. It is time to provide these protocols, to petitioners for new items to add to the §205.606 list as well as items up for renewal under the sunset review process.

All barriers to the production of an organic alternative must be comprehensively reviewed by the NOSB, beyond just making a few phone calls and not finding the product available. Only after it is clearly shown that the barriers to commercial availability are insurmountable should the non-organic agricultural ingredient be allowed on §205.606 as not being commercially available.

Agricultural ingredients are subject to many different types of production and manufacture norms.

There are minimum production runs in order for a manufacturer to consider the production of an organic equivalent, making it difficult to source small amounts. However, if handlers worked with others—even their competitors—to consolidate orders to meet the minimum run requirements, it may become possible to produce that same ingredient organically, making it commercially available.

Another roadblock might be the need to contract for agricultural production of organic crops necessary for manufacturing a product. Unless growers know there is a market for a particular crop, they will probably not grow it. A contract with a buyer can help overcome that barrier. A consistent checklist should be developed to help the NOSB determine not only if the ingredients on the National List are available as organic, but also identify the stumbling blocks to producing it organically.

See the box below for examples of questions that should be answered by all new petitioners and the NOSB when reviewing both new and sunset items for §205.606. Ingredients listed in §205.606 should not only be currently unavailable in the marketplace in an organic form, but also have barriers to its production that are difficult-to-impossible to overcome.

Harriet Behar is the MOSES Organic Specialist who represents MOSES on the National Organic Coalition and National Sustainable Agriculture Coalition.


What are the barriers to producing this ingredient in an organic form?

1. Is there insufficient raw organic agricultural production within the necessary proximity of the main manufacturing facility? Shipping costs are not to be part of the consideration.

2. What proximity constraints are in place for either a manufactured or raw agricultural commodity in organic form? Examples include perishability, political climate (war zone) of the area where the agricultural production occurs or the location of the manufacturing facility.

3. Are there other manufacturing facilities that may have organic agricultural raw ingredient production nearby, or could be enticed to produce this ingredient in an organic form?

4. If raw agricultural production is required in a specific climate or soil type where there currently is no organic production and prospects for organic production are difficult, has production in other areas of the world been researched and work begun to develop new sources of organic crop production of the source ingredients for this product?

5. If there is only non-organic production near a manufacturing facility, what are the barriers to having these producers transition some or all of their production to organic?

6. Has the petitioner or users of this §205.606 ingredient worked with both the manufacturing facilities and pools of growers in the area to develop a supply of raw organic crops to produce this ingredient?

7. Is the demand for this ingredient across the organic industry sufficient to meet the minimum manufacturing production run?

8. Have all possible manufacturers of this ingredient been researched to determine their minimum production runs and regions where the raw agricultural ingredient or ingredients are grown?

9. Can the ingredient be manufactured from not only raw agricultural ingredients, but possibly a secondary manufactured ingredient, such as beet color made not only from raw organic beets, but also from a preprocessed beet juice or beet powder that could be obtained in an organic form? Another example would be instant nonfat dry milk powder made not just from liquid organic skim milk, but from non-instant organic nonfat dry milk powder.

10. Is the process under which this product is manufactured patented, and if so, is the manufacturer willing to produce an organic equivalent?

11. If the ingredient is of limited quantity due to manufacturing constraints other than lack of availability of raw organic crops, what are these constraints?

12. If there is an exclusive-use agreement with select buyers that effectively removes access to an organic or §205.606 ingredient by their competitors, causing them to request a different ingredient to be put on §205.606 as a replacement? Is this market constraint agreement transparent and considered an acceptable reason for inclusion on §205.606 by the NOSB?

13. If this §205.606 ingredient is a fraction of another agricultural ingredient, such as wheat germ from wheat, has the availability of this organic fraction been requested? Have the manufacturers of the whole agricultural product been approached to see if they can produce the required organic sub-ingredient?

14. If the non-organic ingredient is typically a crop that is grown mostly or wholly on contract, and may be a perennial, such as hops, has the petitioner explained to the satisfaction of the NOSB, why pre-contracting with organic producers for the ingredient is impossible or extremely difficult?

Depending on the ingredient, there may be other barriers to organic production that are not listed above, and the petitioner, as well as the NOSB should be researching these barriers and deciding if they are sufficiently difficult that these non-organic ingredients must be put on the National List.


From the May | June Issue

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