Supermarket News on OCA/Bronner's Lawsuit Against the USDA

From Supermarket News June 27, 2005

USDA SUED OVER ORGANIC SEAL.(United States Department of Agriculture)

Enis, Matthew

Byline: Matthew Enis

WASHINGTON -- Joining with the Organic Consumers Association, Marais, Minn.,
Dr. Bronner's & Sun Dog's Magic, an Escondido, Calif.-based maker of organic
lip balms and lotions, this month filed suit against the U.S. Department of
Agriculture, claiming that the agency has illegally reversed earlier
guidance on what types of products can use the USDA Certified Organic label.

In its May 2002 "Policy Statement on National Organic Program Scope," USDA
said producers of nonfood products that contain organically grown
agricultural ingredients, including categories as diverse as pet food, body
care products, fabrics and fertilizers, were eligible to seek NOP
certification and, if certified, to display the USDA seal.

The agency has since taken a different course, deciding in April 2004 that
NOP never had the legal authority to regulate or label any nonfood products.
Despite a brief clash with then Agriculture Secretary Ann Veneman over the
issue, USDA has since held firm on this stance, recently giving cosmetics
and body care companies until October 2005 to remove the Certified Organic
labels from their products or face "enforcement action."

Very few personal care products managed to meet the strict ingredient and
processing standards required to receive NOP certification, but those that
did say the process was expensive, and note that the inability to use the
USDA seal could have a chilling effect on future investment and innovation
for the natural personal care industry.

"Because so many different synthetic substances are used in cosmetics, it's
very difficult to make a 95% organic content product to begin with,"
explained Jim Riddle, chair of the National Organic Standards Board, a group
appointed by the U.S. Secretary of Agriculture to help develop standards for
the NOP. "Very few companies have really gone the extra mile to reach that
95% level and then get certified and then change their labeling. But, some
have, and they had been told by USDA in the agency's 2002 policy statement,
that if their categories of products could meet the labeling and
certification requirements, that they could use the seal."

David Bronner, third-generation operator of Dr. Bronner's Magic Soaps and
Dr. Bronner's & Sun Dog's Magic, last year won an unrelated court battle
with the U.S. Drug Enforcement Administration over that agency's attempted
ban of hemp oils and other hemp-derived ingredients, which are used to make
some of his company's soaps. The cases have similar themes, Bronner told SN.

USDA maintains that NOP never developed specific standards for cosmetics or
personal care items, and that clarifications and rules issued since the
April 2002 Policy Statement make that earlier guidance moot.

"We have no standards for cosmetics or personal care products, so standards
have not been changed," said USDA public affairs officer Joan Shaffer. "The
National Organic Program has jurisdiction only over standards for livestock
and crops, and soon, fish. We cannot certify that something meets standards
that do not exist."

Several natural body care manufacturers expressed confusion at why USDA
would shut their category out of the certification process without the
public comment periods that usually accompany any shift in USDA policy.

Yet the natural personal care industry is itself currently working to set
acceptable boundaries and internal standards for ingredient sourcing and
manufacturing processes.

"You might start, for example, with a certified organic coconut that you're
using to create a surfactant, or cleanser, in a shampoo," said Morris
Shriftman, senior vice president of marketing for Avalon Organics, Petaluma,
Calif., explaining some of the quandaries currently facing industry groups
such as the Personal Care Task Force of the Organic Trade Association,
Greenfield, Mass.

For the category's core consumers, measures like these may be sufficient
until more comprehensive labeling standards can be developed, said Steve
Davis, vice president, Holistic Health for Boulder, Colo.-based Wild Oats
Markets. "These customers are pretty savvy in terms of the labels on
products," he said. "With beauty care products, they look at certified
organic labeling as a plus, but what they're really intent on is making sure
(the products) don't have artificial colors, scents or chemicals like
parabens."