This seal is found on all food products that meet NOP regulations to be called “100% Organic” or “Organic”.

The federal Organic Food Products Act of 1990, 7 U.S.C. §§6501 et seq. (“OFPA”), created a certification scheme for organic products that is implemented by the National Organic Program (NOP) of the US Dept. of Agriculture (USDA). The NOP establishes and enforces standards for labeling of agricultural and food products as “organic,” issues regulations regarding growing and raising organic agricultural products, and regulates use of the term “organic” with regard to agricultural and food products. See 7 C.F.R. Part 205.

As you might imagine, the use of the term “organic” on a product containing agricultural ingredients can be very valuable. Many people search out organic products and are willing to pay a premium for them. As a result, products labeled “organic” can command higher prices and produce greater profits. The OFPA was passed, and the NOP regulations were created, in order to make sure that products labeled organic were really what they claimed to be.

During the rulemaking process for the NOP regulations, some companies that made cosmeceutical and other body care products with organic agricultural ingredients requested that they be allowed to use the organic certification on their products just like with traditional food products. This made sense because, other than the fact that these products are not “ingested” in the traditional way foods are, they were made with agricultural ingredients meeting the same organic standards as foods.

On May 2, 2002, the USDA issued a “policy statement” that allowed producers of any organic agricultural product, regardless of its end use, to seek organic certification. This opened up the organic certified products market to a variety of body care product manufacturers. Manufacturers embraced this new opportunity and began to produce a wide variety of products made from agricultural ingredients that obtained organic certification like soaps, crèmes, lotions and other cosmeceuticals.

Then, for no apparent reason, almost two years later, the USDA did a 180 degree turn and reversed itself by issuing a “guidance statement” that stated that because the OFPA did not cover “non-agricultural products,” makers of personal care, body care and cosmetic products could not obtain NOP organic certification.

The USDA’s about-face made no sense. As the Organic Consumers Association (OCA) stated in its complaint against the USDA seeking to invalidate the “guidance statement,”

“certified organic olive oil does not magically become “non-agricultural” when used as an ingredient in a massage oil rather than as an ingredient in a salad dressing.”

The OCA and a leading organic body products maker sued. On August 23, 2005, the eve of the deadline for its response to the complaint, the USDA backed down and issued a memo to organic certifiers that certified non-food products specifically including personal care may represent that they are NOP certified “organic” or “made with organic,” and display the USDA organic seal, so long as such products are certified to meet the NOP standards for organic agricultural products.

So the OCA was able to get the USDA to back down from its decision to restrict the OFPA’s coverage to food products. But why did the USDA insist on taking this position in the first place? As I have learned while researching the various agency positions effecting producers of natural products and nutritional supplements, the government is often just plain wrong with significant consequences to the industry and consuming public. I am not going to opine broadly on why this is the case. However, it does appear that all too often the government fails or refuses to follow the law unless it is forced too. Examples from the FDA, FTC, and others abound and are sure to be a topic of conversation on this blog….stay tuned.

About 

Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.