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Clarifying “Made With Organic”




by:
Marnie A. Jensen
Husch Blackwell LLP - Lincoln Office

 
May 19, 2014

Previously published on May 12, 2014

“Organic” can mean many things, but above all it is a regulated labeling term. There are actually five labeling categories allowed under the USDA organic regulations (100% Organic, Organic, Made With Organic, Specific Organic Ingredients, and Livestock Feed). Many people find the “Made with Organic” category (referred to in this post as “MWO”) the most confusing. Why? In large part because while MWO provides more leeway regarding ingredients, the labeling requirements are actually more stringent than the other categories. Some have even suggested eliminating the category altogether. Perhaps sensing the confusion, the National Organic Program (“NOP”) has issued a new guidance document, effective May 2, 2014, to clarify several aspects of this labeling category (the “Guidance”).

First, some background on MWO, using an example. Say an ice cream producer wishes to avoid the cost and administrative work of full organic certification, but still wants to use organic ingredients and let her customers know this by using a truthful phrase on the label like “Made with Organic Cream.” Easy, right? Nope! Using the words “Made with Organic” requires that the operation be certified organic, and even then, the words must be used in a compliant manner. (In this example, the only compliant way to avoid certification and still indicate that organic cream is used is to list it as “organic cream” in the ingredient statement, without any other references.)

Ok, so what if the ice cream producer decides to get certified so she can label her ice cream as “Made with Organic Cream.” What does she need to consider? First, the product formulation.

The NOP has always been clear that an MWO product must contain at least 70% organic ingredients (excluding salt and water), and that no ingredients may be produced using what many organic certifiers call “the Big 3” (genetic engineering, sewage sludge, and ionizing radiation). The new Guidance now makes clear that the remaining 30% nonorganic ingredients may include any nonagricultural ingredients that are included on the National List (section 205.605). As for agricultural ingredients, the Guidance isn’t clear on this point, but the NOP’s Organic Alcohol Beverage Guides (and our related blog entry) clarify that any agricultural ingredients comprising the nonorganic 30% are not required to be on the National List (section 205.606). Something else the Guidance mentions that is worth keeping in mind is that organic and nonorganic forms of the same ingredient may be used.

Back to the example-let’s say that our producer’s ice cream is comprised of 56% organic cream, 26% organic milk, 17% sugar, 0.5% vanilla extract, and 0.5% xanthan gum. This formulation is compliant for a MWO product. Showing our work, here is why it complies: (1) it is comprised of at least 70% (actually 82%) organic ingredients; (2) the one nonagricultural ingredient (xanthan gum) is included on the National List; and (3) the remaining two ingredients (sugar and vanilla extract) are agricultural, so can be used even though they are not on the National List. (We’ll assume that the three nonorganic ingredients are verified for the “Big 3.”)

Whew, product formulation? Check.

What’s next? The label.

The wording the ice cream maker originally wanted, “Vanilla Ice Cream—Made with Organic Cream” is compliant. Up to three ingredients (and/or food groups) are allowed to be in the MWO statement, so she could also label the product as “Vanilla Ice Cream—Made with Organic Milk and Cream.” There are a few other nuanced labeling requirements and examples in the Guidance—regarding the use of food groups in the phrase, listing the percentage of organic ingredients, and if organic and nonorganic forms of the same ingredient are used. But for our example, the only other things to remember are: (1) the entire phrase, “Made with Organic Cream” must be in the same font, no more than half the size of the largest text on the panel; (2) the USDA organic logo cannot be used on the package; (3) the certifier of the operation must be identified below the final handler or distributor; and (4) the organic ingredients must be identified as such in the ingredient statement.

Thanks to the NOP for clarifying some of the questions swirling about regarding the MWO labeling category. Now, who wants some organic ice cream?



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Author
 
Marnie A. Jensen
Practice Area
 
Agricultural Law
 
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