The National Organic Program (NOP) is part of the USDA’s Agricultural Marketing Service. More than 30,000 organic farms and processing facilities worldwide are certified organic businesses under the NOP. Two thirds are in the United States and the rest are in Europe, Asia, and Latin America.

In recent years, as the number of organic businesses with NOP certification has grown, the NOP’s enforcement program has become far more vigorous. The NOP reports that it is issuing more enforcement notices to certified organic businesses every year.

The initial type of enforcement notice is a Notice of Noncompliance from the certifier that is in charge of the business’s certification. A Notice of Noncompliance gives the certified organic business a limited time to comply with the notice or challenge it. If a Notice of Noncompliance is unresolved, then the business will receive a Notice of Proposed Suspension or a Notice of Proposed Revocation. Usually, the certifier sends out the notice. However, in some more serious cases, the NOP itself issues the proposed suspension or revocation. A proposed suspension or revocation requires action in just 30 days, or the enforcement action becomes final.

If a certified organic business fails to answer an enforcement notice in a timely and proper way, it can risk losing the right to use the Organic label. Losing an Organic label after a business has worked to get NOP certification, can cripple it. In Fiscal Year 2017, 311 organic businesses lost their NOP certification.

We can step in to help a NOP certified organic business exercise its right to due process of law before it can have its Organic label taken away. It is possible to mediate or to appeal an enforcement action before it becomes final. However, once a business gets a Notice of Proposed Suspension or a Notice of Proposed Revocation, it has only 30 days to request mediation or to file an appeal. These are the only ways a business can hold on to its label while it pursues its case. This short period makes it critical that a business contacts an attorney as soon as it receives an enforcement notice

We specialize in advising and defending organic businesses in these enforcement matters. We have successfully handled numerous mediations and appeals, enabling businesses to keep their organic certifications. Here are examples of how we have helped businesses keep their organic label:

• Full Appeal to NOP Resulted in Favorable Settlement. In 2010, a certifier charged a 442-acre organic farm in Mexico, growing bell peppers, cucumbers, and tomatoes, with planting chemically treated seeds to grow its organic crops. If true, this would be a serious violation of the NOP organic standards and would revoke the farm’s certification for five years.

While this charge was not well founded, the certifier acted against the farm because of miscommunication. The farm tried but failed to explain successfully to the certifier why the charge was wrong. When the farm requested mediation, the certifier refused, so the farm’s last chance was to file a NOP appeal. The farm engaged us, and we filed an appeal with the NOP on January 10, 2011. Once we filed the appeal, the farm kept its certification as long as the appeal remained pending. The NOP evaluated the appeal and decided it had merit. In 2012, the NOP offered the farm a settlement on extremely favorable terms. The farm agreed to a three year probation. It never lost its certification nor had to admit any wrongdoing.

• Mediation with Certifier Won a Full Victory. In 2015, a certified organic farming operation in California’s Imperial Valley, which grew leafy green vegetables, decided to replace its existing organic certifier with a different certifier. For a short time, the farm kept the old certifier along with the new one. After it had switched, the farm received a Notice of Proposed Suspension from the old certifier. That certifier did not approve the farm’s use of a certain fertilizer. The farm, meanwhile, had obtained permission to use the fertilizer from its new certifier, so there was a disagreement between the old and the new certifier.  If the old certifier had been able to suspend the farm, the farm would have lost its label until it could get it reinstated. The old certifier agreed to have informal mediation, and the farm engaged us for legal assistance.

We informed the old certifier that under NOP policy it could not suspend the farm for using the fertilizer. We explained that the farm was relying on a ruling from a NOP accredited certifier. If the old certifier disagreed with that ruling, it was a matter for the NOP to resolve. As a result, the old certifier withdrew the proposed suspension. The farm was able to keep its certification without interruption.

• Mediation with Certifier Kept Certification Active. In 2014, a large Mexico City candy manufacturer with organic certification for part of its production received a Notice of Proposed Suspension from its certifier. The company engaged us to prepare a mediation request. The certifier accepted the request and agreed not to suspend the company during the process. We then worked with the company’s organic consultant, to ensure the company met the certifier’s conditions. The company passed its next inspection and never had its certification interrupted.

A business that markets any product as “organic” must have organic certification under the NOP. The NOP is on the lookout for businesses using organic on their labels that are in violation of the law because they are not NOP certified., The NOP has the power to issue cease-and-desist orders to stop a business from claiming to be organic.

If the business does not respond in a timely and proper way, it can risk civil penalties. The civil penalty for a single violation can be up to $17,952, and if there have been multiple violations, this amount can be imposed for each violation. In Fiscal Year 2017, the NOP issued 18 cease-and-desist orders and levied $187,500 in civil penalties. We have helped several businesses comply with the NOP after they used the word organic without NOP certification. This helped them avoid civil penalties.

With the organic industry’s phenomenal growth, more and more companies that sell farm inputs, such as seed, fertilizer, feed additives and crop protection chemicals, want their products NOP approved for organic farm and ranch use. Likewise, companies that sell food ingredients that are not available in organic form want to have their products allowed as ingredients in organic food.

An organic farm, ranch or food manufacturer may use certain non-organic products. For example, in a food product labeled as “organic,” 95 percent of the ingredients must be certified organic. However, under special rules, an organic food product may contain certain selected minor ingredients in the remaining 5 percent that are not certified organic if they are designated as allowed on the NOP’s National List of Allowed and Prohibited Substances (the National List).

If your non-organic product is not covered as allowed on the National List, you must seek a change in the National List so that the National List will cover your product for use in organic production. This process starts with a petition to the USDA’s 15-member advisory committee, the National Organic Standards Board, or NOSB. If the NOSB approves a petition, it will recommend to the USDA’s NOP staff that it make the necessary addition to the National List.

We advise and represent companies that want to petition the NOSB to have the National List cover their product. . For example:

• We represented Agrano, the German yeast manufacturer, and its U.S. importer, as they introduced the first commercially available yeast as an organic food ingredient. In October 2010, NOSB voted to support Agrano’s petition to amend the National List to enable the use of organic yeast in organic processed foods. In 2012, the USDA adopted the amendment.
• In 2011 we represented Organic Vintners and a coalition of wine companies petitioning to change the National List to allow labeling wine with sulfites as organic instead of made with organic grapes.
• In 2015, when the NOSB reviewed whether fish oil should continue to be allowed on the National List as a non-organic ingredient in organic food, DSM, one of the world’s leading nutritional products manufacturers, engaged us to advocate for keeping fish oil on the National List. The NOSB later voted to continue allowing fish oil as a non-organic ingredient in organic food.
• In 2015 three chemical companies petitioned the NOSB to amend the National List to allow their synthetic chemicals for control of ammonia in organic poultry houses. A Canadian company, Absorbent Products, Ltd., engaged us because it had a competing product that was all natural.  We planned and carried out a strategy for NOSB to reject the chemical companies’ petitions. NOSB voted unanimously at its November 2016 meeting not to approve the synthetic chemicals for organic poultry houses.

The NOP operates differently from most USDA inspection programs because the NOP does not have USDA employees in the field to perform the inspections and certifications of organic farms, ranches and food processing facilities. Instead, the NOP out-sources the inspections and certifications to 80 outside organizations. The NOP accredits these organizations as its certifying agents in the field all over the world. Of these certifying agents, 48 are based in the United States and 32 in foreign countries.

The NOP staff audits the accredited agents’ performance and requires them to renew their accreditations every five years. Certifying agents can receive enforcement notices from the NOP if they do not meet their NOP responsibilities. Ultimately, the NOP may deprive a certifying agent of its license.

Several certifiers have asked us to advise and represent them concerning their NOP accreditation issues. Since 2008, we have prepared four appeals for certifying agents, all with successful outcomes, so that NOP continued their accreditations.

For example, in 2016, we were successful in defending ETKO, an NOP accredited certifying agent based in Izmir, Turkey. The NOP proposed suspending ETKO’s accreditation. ETKO engaged us to submit an appeal on its behalf. While the appeal was pending, ETKO was able to retain its NOP accreditation, and when the NOP reached a decision on ETKO’s appeal, it decided to offer a settlement instead of moving to suspend ETKO. While NOP treats our other appeals for certifiers as confidential matters, in ETKO’s case there was a Freedom of Information Act request to NOP to disclose the record of ETKO’s appeal. These documents were all made public. They are on the USDA Agricultural Marketing Service website, in the FOIA Reading Room. See: ETKO Appeal Settlement.pdf.