April 10, 1998
Eileen S. Stommes, Deputy Administrator
USDA-AMS-TM-NOP
Room 4007-So., Ag. Stop 0275
P.O. Box 96456
Washington, D.C. 20090-6456
Dear Ms. Stommes:
Enclosed are Consumers Unions comments on Docket No. TMD-94-00-2, National Organic Program, published in the Federal Register (62FR 65890) on Tuesday, December 16, 1997.
We appreciate your consideration of our views.
Sincerely,
Jean Halloran
Director
Consumer Policy Institute
Comments on Docket No. TMD-94-00-2
National Organic Program
Basis of CU Comments
The 1990 Organic Foods Production Act (OFPA) was passed primarily as a consumer labeling law, to provide a national uniform definition to the term “organic” in the marketplace. Unregulated use of the term “organic” was leading to at best confusion, and at worst, fraud. A uniform national standard will address these consumer problems, and also lead to industry growth, which would benefit the consumer and the environment. The January 1998 Consumer Reports endorsed creation of a national labeling standard in order to reduce confusion in the marketplace.
Consumers Union, provides the comments below on USDA’s proposed rule: National Organic Program [Docket No. TMD-92-00-2] that appeared in 62FR 65890, December 16, 1997, and which implement the OFPA. The proposed regulations should adhere closely to the spirit and letter of the law.
The OFPA defines organic farming in general, and with specificity in many areas. The general statements in the statute are as follows: “To be sold or labeled as organically produced, …an agricultural product shall (1) have been produced and handled without the use of synthetic chemicals… and (2) not be produced on land to which any prohibited substance, including synthetic chemicals, have been applied during the 3 years immediately preceding harvest… and (3) be produced and handled in compliance with an organic plan…” The term “synthetic” is defined as:
“a substance that is formulated or manufactured by a chemical process or by a process that chemically changes a substance extracted from naturally occurring plant, animal or mineral sources, except that such term shall not apply to substances created by naturally occurring biological process.”
With regard to processing, the OFPA further states that for a product to be labeled organic, no one shall “add any synthetic ingredient during the processing or any post harvest handling.”
Since many parts of the law are open to interpretation, the OFPA set up specific processes for deciding what is a synthetic, and therefore a prohibited substance in organic farming, what is a prohibited natural substance, as well as standards for livestock handling, and other issues. The OFPA calls for a “National List” of permitted synthetics and prohibited natural substances to be developed by the “National Organic Standards Board” made up of representatives, appointed by the Secretary of Agriculture, from the organic community (farmers, handlers, certifiers and retailers), environmental community, public interest or consumer interest community, and a technical expert (from field of toxicology, ecology, or biochemistry). The NOSB may allow some synthetic substances to be used in organic production by recommending their addition to the National List. Natural substances may be prohibited by the NOSB if they are harmful to human health or the environment.
Although it was a lengthy effort (7 years), we believe the NOSB process preceding the proposed rule was sound, adhered closely to the letter and spirit of the law, was conducted with great thoughtfulness, attention to detail and sound science, and involved the required constituencies. The NOSB, with its consumer representatives, produced recommendations that, for the most part, serve consumers’ interests.
The law also specifically states that the Secretary of Agriculture may not add synthetic substances to the National List unless they have been approved by the NOSB (“The Secretary may not include exemptions for the use of specific synthetic substances in the National List other than those exemptions contained in the Proposed National List of Proposed Amendments to the National List”–7 U.S.C. 6517(d)(2)). The proposed rule violates this provision of the law by including synthetic substances on the National List not recommended by the NOSB. The Department should delete all synthetic substances on the National List that were not recommended by the NOSB. The NOSB process with respect to the National List helps ensure that synthetic substances are not arbitrarily added to the National List by requiring a two-thirds vote of the NOSB for any such addition. This gives consumer and environmental representatives a strong role in establishing the National List. USDA should not weaken that consumer representation.
CATEGORICAL EXCLUSIONS
In the proposed rule, the USDA requests comment on whether genetically engineered substances, irradiation, and sewage sludge can be specifically used as inputs in organic farming. The law is silent on these, but the NOSB looked into each one and decided that they should not be allowed.
1. Genetic Engineering. Consumers Union supports the exclusion of genetically engineered crops from the “organic” label, because many consumers expect organic products to be “natural.” It is unlikely that genetically engineered foods will be considered “natural” by consumers.
In the report “The Evolving Organic Marketplace,” by Hartman and New Hope, the authors discuss polling they conducted of 1000 consumers in August 1997. When consumers were asked an open-ended question as to what characteristics they felt an organic product has, 36% volunteered that organic meant “natural” rather than artificial and 29% viewed organic products as being natural, close to nature or containing natural ingredients. “Natural” was the second most common defining concept expressed, after absence of chemicals, pesticides or artificial ingredients (44%). Since genetically engineered foods are created by altering genetic material in ways that do not occur in nature, their inclusion in organic would be contrary to consumer expectations, and would increase consumer confusion about the meaning of the organic label.
Not only are genetically engineered substances inconsistent with consumer expectations, they will also likely be inconsistent with the statute which prohibits substances that may be harmful to human health or the environment. Consumers Union is concerned that certain genetically engineered crops will be detrimental to the environment. For example, crops that are engineered to express the Bt endotoxin, which is normally only produced by bacteria, will induce widespread insect resistance to this benign natural pesticide, and cause the loss of a valuable natural pest control tool. In addition genetic engineering can transfer allergens from one food to another; some genetically engineered food may therefore pose a health risk to sensitive individuals.
We therefore urge USDA not to allow genetically engineered food to be labeled organic at this time. If consumer perceptions of genetic engineering change, and systems are established to insure the human and environmental safety of genetically engineered food, and all such products are required to be labeled, this exclusion can be reconsidered by the NOSB. NOSB could undertake case-by case evaluation of whether genetically engineered products are consistent with the philosophy of organic agriculture. Under the OFPA, all specific exclusions and inclusions on the National List sunset after five years unless the NOSB renews them, so a review after five years is built into the process, and would be appropriate.
2. Irradiation. Consumers Union neither opposes nor supports the use of irradiation on ordinary food products. However, we are concerned that many consumers of organic products may not consider this technology to be a natural or minimal form of processing and, hence, may not expect or want it to be used on organic foods.
Many of the early commenters to USDA on this proposal regard irradiation as incompatible with organic as did the NOSB. If USDA determines, upon reviewing all comments, that most consumers of organic food do not regard irradiation as consistent with organic food, then USDA should exclude irradiation. This would serve the basic goal of the OFPA, which is to reduce confusion about the meaning of the organic label.
If the USDA allows irradiated foods to be labeled “organic”, it is essential, to avoid consumer deception, that such foods be labeled as “irradiated” prominently. The use of euphemistic disclosure statements or small-print disclosures on back or side labels will not provide adequate consumer information. Because statutory labeling requirements for irradiated foods have recently been amended, Consumers Union does not believe current labeling laws will guarantee sufficient information to consumers. Therefore, if USDA permits organic food to be irradiated, the labeling requirement pertaining to irradiated foods must exceed the requirements that apply to ordinary foods. USDA would have to specify clear and conspicuous disclosures on the front panel of packaged foods and prominently displayed posting in immediate proximity to loose commodities offered for sale.
3. Sewage sludge. CU believes sewage sludge should be excluded as an input to organic farming. Municipal sewage sludge frequently contains industrial waste and street runoff, as well as household waste, all of which include synthetic chemicals (pesticides, solvents, etc.) as well as heavy metals and plastics—substances that are prohibited for use in organic production. Under OFPA, organic crops, including fiber crops, may “not be produced on land to which any prohibited substances, including synthetic chemicals, have been applied” and organic farms “shall not use natural poisons such as arsenic and lead salts that have long-term effects and persist in the environment.” Thus CU urges USDA to prohibit sewage sludge, because it is contrary to the OFPA and to consumer expectations.
4. Rendered animal protein for animal feed. The OFPA says organic farmers “shall feed such livestock organically produced feed” and explicitly prohibits manure refeeding, formulas containing urea, and plastic pellets for roughage. The OFPA did not address the use of rendered animal protein in feed. Neither the NOSB recommendations, nor the USDA proposed rule addressed this specific feeding practice.
CU urges USDA to adopt a specific prohibition against feeding any rendered mammal protein to organic meat animals or poultry because all rendered protein is treated with synthetic chemicals and does not come from organic sources. Therefore it does not meet the criterion of organically produced feed. Rendered animal protein may also contain pesticide residues and other substances that are prohibited by the OFPA. In addition, as noted above, consumers widely expect organic products to be “natural,” and rendered animal remains is not a natural food for livestock.
GENERAL ISSUES IN DEFINING ORGANIC
Beyond these major categorical exclusions, USDA’s proposed rule allows a number of other substances for use in organic production who were neither recommended by the NOSB nor anticipated by the OFPA. USDA’s changes generally erode the distinction between organic and other foods. CU urges USDA to adopt a rigorous definition of organic, similar to that recommended by the NOSB.
1. Synthetic additives. The law explicitly prohibits adding “any synthetic ingredient during the processing . . . of the product.” The USDA’s proposed rule does prohibit use of “extraneous synthetic additives”—which it defines as “synthetic preservatives, coloring agents and flavors.” However, the USDA’s proposed rule did not adopt many of the fine distinctions on synthetic additives recommended by the NOSB.
For example, NOSB recommended that only gums that were water-extracted and glycerin produced by hydrolysis from fats and oils be permitted. The proposed rule would permit use of any gums, including chemically extracted, or glycerin. The NOSB approved only magnesium chloride derived from sea water; the proposed rule allows the use of any, including chemically produced magnesium chloride. NOSB recommended permitting citric acid, but only that made by microbial fermentation of CHO substrates, while the proposed rule permits all citric acid.
The NOSB restricted the use of sodium phosphates to dairying only, while the proposed rule permits all use. NOSB limited use of sulfur dioxide to wine making, while the proposed rule permits all uses. NOSB approved use of mono- and di-glycerides only for drum drying, while the proposed rule permits all use.
None of these issues poses a safety concern except sulfur dioxide, which causes allergic reactions in some individuals. And no single deviation from the NOSB recommendations, on its own, has a major impact on the organic label. However, the cumulative impact of these changes is to blur the meaning of “organic,” increase consumer confusion, and decrease the integrity of the organic label. CU therefore urges USDA to adopt the NOSB’s rigorous recommendations on synthetic additives.
2. Synthetic inert ingredients. The OFPA mentions synthetic inert ingredients only in reference pesticide formulation, and permits synthetic inerts only if: (1) they are not of toxicological concern (i.e. not on EPA’s List 1, Inerts of Toxicological Concern); (2) the Secretary of Agriculture. determines that use of such inerts would not harm human health or the environment, is necessary due to unavailability of wholly natural substitute products, and is consistent with organic farming and handling, and (3) the inert has gone through the “National List” process, which requires NOSB review and approval.
The proposed rule ignores the requirement for NOSB approval, and categorically states that any non-List 1 inert can be used: “formulations containing synthetic inert substances included on EPA List 2, Potentially Toxic Inerts; EPA List 3, Inerts of Unknown Toxicity and EPA List 4, Inerts of Minimal Concern would be permitted in organic production under our proposal” (FR Dec. 16, 1997, pg. 65890). A number of synthetic chemicals that would be permissible under this proposal pose health concerns. CU supports the requirement for NOSB approval/review of each synthetic substance in accordance with the law.
In addition, the USDA has proposed expanding the definition of “inert ingredient” beyond pesticide formulations to “inert ingredients intentionally included in any product used in organic crop production, such as fertilizers or foliar sprays.” Under USDA’s proposal, these “inerts” in fertilizer could also include synthetics on EPA’s List 2, 3 and 4. CU urges USDA not to allow synthetic inerts in fertilizers in the regulations, because the OFPA authorizes synthetic inerts only in pesticide formulations, and only after NOSB review.
3. Synthetic substances used in production. Although the law is very clear that no synthetic substances can be used in organic farming and production, unless they have gone through the National List process, and that the Secretary may not unilaterally place any synthetics on the List, the proposed regulation overrules a number of the NOSB recommendations and dramatically expands the scope of allowed synthetics. USDA justifies its actions by reclassifying substances into newly invented categories such as “non-synthetic,” “non-active ingredient,” and “incidental additive,” and suggesting that since the OFPA is silent on these categories, USDA has greater latitude for placing them on the National List. We do not believe USDA has this authority under the statute.
For example, the NOSB recommended that only certain specific synthetic antibiotics be allowed for use as pesticides in crop production and specifically rejected avermectin. The USDA argues that “all the antibiotics labeled for use as pesticides by EPA are of equally minimal consequence on biological and chemical interactions in the agroecosystem and would not cause measurable degradation of soil or water quality when properly used according to label instruction” and so would permit all EPA approved antibiotics for pesticides, including avermectin.
The NOSB also rejected the pesticide synergist piperonyl butoxide (PBO), which is extracted from a natural substance but synthetically modified during extraction and refinement. The USDA proposes to allow PBO as a permitted synthetic, arguing that the vote was close at NOSB, that PBO would not have an adverse effect on the environment and that it would (being a synergist) reduce the amount of botanical pesticides used. Since there are still some unanswered questions about potential health effects of PBO, and since the law expressly prohibits the Secretary of Agriculture from adding substances to the National List of permitted synthetics that NOSB hasn’t recommended, we oppose the use of PBO in organic production.
NOSB decided that a seed treated with a pesticide could be used only if no commercial sources of non-treated seed were available and if the pesticide was on the National List of permitted synthetics. USDA proposes that pesticide-treated seeds can be used even if the pesticide is not on the National List, arguing incredibly, that the pesticide used on the seed is not an active ingredient: “Treated seed, i.e. seed treated with pesticides, itself is not a synthetic substance because seed is an agricultural product and the treatment does not chemically alter or combine with the seed. When a treated seed is used as permitted. . . the seed treatment does not function as an active ingredient for its intended use, nor do we consider it as causing measurable degradation of soil or water quality; therefore, the seed treatment is incidental or inconsequential when treated seed is used in organic production.” CU opposes this weakening of the rules, because it is directly contrary to the letter and intent of the OFPA, and will create consumer confusion. The OFPA does not anticipate any use of synthetic pesticides except for those on the National List. Whether the pesticide is technically an active ingredient is irrelevant with respect to the OFPA. Consumers do not expect synthetic pesticides to be used in organic farming; indeed according to the Hartman survey, absence of pesticide use is the primary defining characteristic of organic farming for consumers.
In the general rules for what is permitted, USDA also argues that any synthetic substance that is not an active ingredient should be permissible: “only synthetic substances that contain active ingredients need to be on the National List in order to be permitted for use in organic production. . . . substances that we have determined to be synthetic, but not active, and which therefore are not required to have included on the National List in order to be used in organic farming and handling” (FR Dec. 16, 1997, pg. ). The OFPA does not anticipate such broad exemptions for synthetics. This loophole is most significant for fertilizer, where the USDA proposes that almost anything containing plant and animal materials would be permitted as long as the synthetic substances do not affect the agroecosystem and do not accumulate in the soil. For example, grass clippings from a pesticide treated lawn and shredded municipal solid waste would become permissible inputs because their toxic and synthetic contaminants would be “inactive.” CU believes the distinction between active v. inactive synthetics is completely contrary to the letter and spirit of the OFPA and should be eliminated.
Overall, CU opposes USDA’s creation of all these general categories that do not exist in the law, including “non-active residue,” and “incidental additive.”
4. 80% organic feed requirement. USDA has proposed that 20 percent of the feed of organic livestock can be non-organic. In addition, the rule proposes that the Administrator may authorize use of more non-organic feed in an emergency situation affecting the commercial availability of organic feed. There is no limitation on this, so if “emergency” were very broadly defined, one could imagine “organic” beef from a cow that had gotten no organic feed whatever.
The OFPA simply says organic farmers “shall feed such livestock organically produced feed.” The NOSB proposed allowing non-organic feed in an emergency. The NOSB recommends that in the event of a feed availability emergency, non-organic feed may be given “on an extremely limited basis” provided the certifying agency establishes a maximum time period in which the non-organic feed can be used.
CU thinks that in general organic livestock should be required to get 100 percent organic feed. There can be exceptions for emergencies, but any exceptions should be clearly and tightly limited and should be the same everywhere (i.e. should not vary from one certifier to another). Historically, the government has a poor record in judiciously using emergency exemptions for pesticide use. Many pesticide “emergency exemptions” have permitted use of hazardous and otherwise restricted pesticides routinely. We are concerned that certifiers may have similar difficulty defining emergencies, and that different certifiers may use different criteria. CU suggests the following limits on emergency use of non-organic feed: (1) Geographic limit — non-organic feed exemption can be allowed only in counties declared eligible for federal disaster assistance or USDA disaster relief programs; and (2) Time limit—no more than two months in a year or 15% of the lifetime of a meat or poultry animal if it is grown and slaughtered in less than a year.
From the consumer perspective, the appeal of organic products, and the consumers willingness to pay a price premium for organic, lies in the highly rigorous and uncompromising standards of the organic industry. Any exceptions or vagueness in criteria serve to undermine consumer confidence and open the door to fraud. Therefore we oppose emergency exemptions on organic feed, except in the very limited, very clearly defined circumstances noted above.
TESTING, LABELING AND CERTIFICATION
1. Prohibition Against Misleading Labeling. Consumers Union supports the provision of the OFPA that protects consumers from label claims that directly or indirectly imply that the product was produced using organic methods except when produced in accordance with the OFPA. Growing consumer demand for organic food and the price premiums for such food create an incentive for fraudulent or misleading labeling which might imply the food is organic when it is not.
The proposed rule itself merely rephrases the statutory prohibition. However, in the preamble the agency has invited comment on whether USDA should specify in the rule particular label claims that may violate the Act.
Consumers Union believes USDA is overly broad in its interpretation of the statutory prohibition on claims that “directly or indirectly imply” a food is organic. Of the many terms the agency said it may consider to imply a food was organically produced, CU finds none it considers to be a violation of the specific provision of the OFPA. Production claims such as “humanely raised,” “raised without antibiotics,” “raised without growth hormones,” and “sustainably harvested” do not imply that the food was produced in compliance with the OFPA, but rather that a particular practice was or was not used by the producer.
A claim of use or non-use of a specific production practice that also happens to be one requirement for compliance with the OFPA should not, on its own, be considered to indirectly imply the food is organic. Some consumers may have specific preferences for meat and poultry produced without hormones or antibiotics, for example, and may seek out foods labeled as such. Those consumers should not be deprived of voluntary labeling information that helps them exercise market preferences.
Furthermore, USDA should not dissuade farmers and handlers from adopting integrated pest management systems or other environmentally-friendly production practices by prohibiting labels which accurately inform consumers about those practices. Prohibitions on such terms may reduce consumer choice and information in the marketplace and dissuade agricultural producers and processors from meeting consumer demand for foods produced using more ecologically sound production practices.
Consumers Union in December, 1997 published in Consumer Reports the result of testing of a variety of ecolabelled products that did not use the word organic, such as “biological pest control.” Samples of vegetables we tested (green peppers and tomatoes) were as free as or more free than organic samples in terms of pesticide residues. Samples of fruits (apples and peaches) were not as low in pesticide residues as organic products, but they were lower than conventional samples. Thus we concluded that in general these labels were not deceiving to consumers–consumers did get extra value, in terms of lower pesticide levels, from these products.
The test for all the specific production claims should be whether they are truthful and non-misleading under the provisions of the Federal Food, Drug and Cosmetic Act, the Poultry Products Inspection Act and the Federal Meat Inspection Act, not whether they indirectly imply a food is organic.
To comply with the OFPA, USDA should instead consider prohibiting label claims that appear to intentionally mislead consumers into thinking a food is USDA certified-organic. A label statement such as “We support organic food production” may indirectly imply the food is organic when it was not produced in accordance with the OFPA. Similarly, loose use of the word “organic”, such as “grown in the organic heartland” or “grown using some organic methods”, “organically-sound” or “organi-friendly” on a label would likely violate the prohibition in the Act. Use of variations of the word “organic” in a product name or brand name also indirectly imply the food is organic.
USDA should publish guidance on label statements it finds may directly or indirectly imply a product has been produced using organic methods as well as types of production claims that, on their own, will not violate the labeling restrictions of the OFPA.
2. Prohibition Against More Stringent Requirements By Some Certifiers. The proposed rule prohibits private certifiers from requiring users of their logo to comply with “any farming or handling requirement other than those provided for in the Act and the regulations.” We urge USDA to delete this restriction. The USDA standards should be a floor, not a ceiling. Farmers are not compelled to utilize any particular certifier to be certified organic. If one certifier wishes his seal to represent “organic.plus” in some way–for example if a certifier required all farmers using his seal to use certain humane farming practices or to grow in a particular geographic region–we think this should be allowed. We therefore urge USDA to place no restrictions on additional requirements certifiers can impose.
3. Conflict of Interest. Consumers Union is concerned that Section 205.301 of the proposed rule provides too narrow a prohibition on “conflicts of interest.” USDA proposes only that a certifying agent may not certify an operation if the agent or a responsibly connected party of the agent has held a commercial interest in the operation to be certified in the last twelve months. The agent may also not assign an inspector or an employee to inspect or certify an operation in which the inspector or employee has or has held a commercial interest during the twelve months prior to the application for certification. It is important that USDA take all reasonable steps to prevent conflicts of interest among certifying agents.
CU is concerned that “commercial interest” has not been defined in the proposed rule. If commercial interest is limited to direct financial interest in the organic operation (i.e., partial or full ownership, management, director, officer etc.) or the provision of consultancy services, it may be too narrow. Conflicts could arise from certifiers and their employees/inspectors having a financial interest in other food and agriculture-related businesses such as those that sell inputs to farmers, ship goods, buy raw product from farmers, process or package food, etc. USDA should clarify in the final rule that “commercial interest” extends beyond mere ownership interest in a certified operation or provision of consultancy services to such operations.
In addition, the proposed rule places restrictions on certifiers if a “responsibly connected party” of the certifier holds a commercial interest in a certified operation. However, based on the definition of “responsibly connected party,” no certification restrictions are placed on agents who have family members that have a commercial interest in an applicant or recipient of certification. Since conflicts of interest may arise in such a situation, USDA should consider broadening the prohibition on conflicts of interest to preclude certification of operations in which immediate family members, including spouses, have a financial or commercial interest. The relevance of the business interests of immediate family members is alluded to in Section 205.304 in which the proposed rule requires that certifying agents submit information to the Secretary on the business interest of the accreditation applicant’s personnel and their immediate family members, but no corresponding prohibition exists in Section 205.301.
In addition, CU is concerned that there are no requirements for accreditation that would prevent a former certifying agent/employee/inspector from obtaining ownership interest in an operation that he or she had just certified. Under the rule, a certifying agent/employee/inspector could certify an operation(s) as organic, terminate their employment, and subsequently obtain a commercial interest in the certified farm(s). USDA should consider requiring, as a condition of accreditation, that certifying agents, their employees and inspectors agree to postpone ownership or other financial interest in any operation they certify for a period of at least one year after terminating their employment as an organic certifier.
4. Frequency of Pesticide Residue Testing. The proposed rule calls for a certifier to test a certified farm or handling operation “not less frequently than every five years.” This requirement is an inadequate foundation from which consumers can be assured that organic foods have not been grown with the use of synthetic pesticides.
Consumers Union tested organic and conventionally grown produce for the presence of pesticide residue and published the results in the January 1998 edition of Consumer Reports. We were surprised to find in our investigation that 25% of the organic foods we tested contained traces of pesticide not sanctioned for use by any private or state organic certification program. The residues we found on organically labeled foods may have resulted from inadvertent drift or carry-over in the soil, or from direct application.
We recommend several changes in the proposed rule governing compliance with residue testing and monitoring requirements. First, the frequency of compliance testing should be based on the volume of organic production of the farm, processor or distributor, relative to total production of the commodity. The greater the production, the more frequent the testing should be.
Second, USDA should require that testing be based on past performance and the quality of record keeping regarding pest management practices. Organic growers and processors who have tested positive for pesticide residues, both within allowed limits and above the limit, should be more frequently tested.
Third, USDA should require, in general, more frequent pesticide residue testing than once every five years. While increased testing frequency may increase costs to producers, residue testing once every five years seems far too infrequent given our January 1998 findings.
5. “Dectectable” and “Acceptable” Levels. Consumers first and foremost expect organic foods to be free of synthetic pesticide residues. The OFPA appropriately requires certifying agents to have a pesticide residue testing program as part of their compliance and enforcement protocols. However, the OFPA allows for food certified as organic to contain low levels of prohibited residues under certain unavoidable circumstances, such as a government-mandated aerial spray program, or persistent residues in soil or irrigation water.
The results of recent Consumers Union testing of produce labeled as organic suggests the need for changes in the rule as proposed. Consumer Reports found that 25 percent of organic samples tested had some detectable pesticide residue.
The OFPA requires organic food to have “no detectable residues.” However, the proposed rule defines 5 percent of the EPA tolerance level as the “detectable residue level” for purposes of compliance testing and enforcement. By this measure none of the CU organic samples had a “detectable” residue. USDA’s definition of “detectable” is inaccurate and unscientific, since for virtually all pesticides used today, the detectable level is much lower than 5 percent of the EPA tolerance.
A “detectable” residue level is defined by EPA and others as the lowest level that can be reliably identified using state of the art sampling and analytical chemistry techniques. Since analytical chemists can almost indefinitely enhance the sensitivity of analytical methods as long as time and cost are not constraints, there is a need for a practical lower-bound below which certifiers, and the analytical laboratories they work with, do not need to go beyond. We suggest that such a level be set at 0.01 ppm in the final rule, or in the event of tolerances above 10 ppm, one-thousandth (0.001) of the current published tolerance levels (i.e., for a tolerance of 20 ppm, the level of sensitivity would need to be 0.02 ppm), except in cases where the USDA and/or EPA determines that such a level of residue poses more than a “deminimus risk.”
Today, a significant portion of the pesticide residues found on conventional food grown in the United States are at levels below 5 percent of the published EPA tolerance level. Furthermore, because of heightened concern over endocrine disrupting pesticides in the food supply and the risks facing infants, children, and pregnant women, the Congress passed the “Food Quality Protection Act” (FQPA) in the summer of 1996, setting in motion a re-evaluation of over 9,000 published tolerances, several thousand of which will be lowered markedly or revoked. EPA has acknowledged that many tolerances were set years ago without consideration of potential adverse effects on human health. Until such time as a tolerance is adjusted by EPA to meet the “reasonable certainty of no harm” standard in the FQPA, “acceptable” levels of residues in organic food from inadvertent sources of contamination should be limited to 1% of the current EPA tolerance.
Changes in the pesticide residue provisions of the proposed rule are needed to protect U.S. consumers from being confused and misled about pesticide residues in organic food. The changes are also needed because under this proposed rule because imported food products that are labeled “organic,” may contain pesticide residues at levels well in excess of residues found on most conventional food grown in the U.S. More attention must be given to the pesticide residue-related provisions governing the determination of “equivalency” in an international certification program.