Why did these materials remain on the National List?
The National List of Allowed and Prohibited Substances identifies the synthetic substances that may be used and the nonsynthetic (natural) substances that may not be used in organic crop and livestock production. It also identifies a limited number of nonorganic substances that may be used in or on processed organic products. The list is maintained as part of the organic regulations under the direction of the Secretary of Agriculture. The Organic Foods Production Act (OFPA) stipulates that the National Organic Standards Board (NOSB), a federal advisory committee, is responsible for making recommendations to the Secretary regarding the content of the National List. OFPA prohibits the Secretary from adding any new synthetic substance to the National List unless the NOSB has proposed the amendment. OFPA also requires that any proposed amendments to the National List are published in the Federal Register, and that public comments are considered before the Secretary implements changes. To be eligible for inclusion on the National List, the NOSB must determine that the substance complies with the specific criteria in OFPA (7 USC 6517(c)(1)). A substance may come under NOSB review and NOP consideration either through the petition process, which anyone can initiate, or during a “sunset” review.
The sunset provision of OFPA (7 USC 6517(e)) requires the NOSB to review all substances on the National List every five years to determine whether the substance continues to comply with OFPA criteria. This review takes into account any new information about the substance, as well as public comments. If two-thirds of the NOSB finds that a substance no longer meets OFPA criteria, they can vote to recommend it for removal from the National List. Then the authority lies with the Secretary to implement the recommendations. When a substance is recommended for removal, there is an additional public comment period before the Secretary acts. The sunset process is described in detail on the USDA website here: www.ams.usda.gov/sites/default/files/media/Sunset%20Review-Renewal%20Process.pdf.
Latest action on sunset materials
In 2017, the NOP completed rulemaking in response to the NOSB sunset review recommendations from 2015. The NOSB had recommended removing 11 substances from the National List. However, on July 6, 2017, the National Organic Program (NOP) published the Final Rule in which only eight of the 11 substances were removed. The remaining three substances had their listings renewed on §205.606:inulin-oligofructose enriched, Turkish bay leavesand whey protein concentrate. This enables the continued use of nonorganic forms of these materials in products labeled “organic” for another five years, until the next sunset review. On April 4, 2018 the Secretary also renewed the listing for carrageenanon §205.605, thereby allowing its continued use as a processing aid for organic food, despite the NOSB’s 2016 recommendation to remove it. Carrageenan is used as a food additive in the production of a wide range of processed foods, including dairy products such as ice cream.
The reason for the change from the NOSB recommendations to what was implemented in the Final Rule stems from the public comments that were received, both during the NOSB decision process and also during the NOP rulemaking process. Comments from the public opposed the removal of these ingredients due to a lack of available organic forms needed, lack of organic supply, or in the case of carrageenan, lack of wholly natural substitutes. Based on these comments, the NOP determined that carrageenan and nonorganic forms of Turkish bay leaves, inulin-oligofructose enriched, and whey protein concentrate are essential to organic production and handling, and should remain on the National List. The NOP is not legally obligated to implement NOSB recommendations. According to OFPA (USC 6517(d)(2)) the NOP is only legally prohibited from adding a new synthetic material to the National List that has not been recommended by the NOSB. For more information about the status of NOP responses to various NOSB recommendations, you may refer to the Indices of NOSB Recommendations.