NOP Issues Final Guidance Concerning “Made with Organic” Claims

By Riëtte van Laack –

In 2011, the National Organic Program (“NOP”) of the USDA announced the availability of a draft guidance for “Made with Organic” claims.  Of the four categories of organic claims (“100% organic,” “organic,” “made with organic,” “x% organic”), this category of organic claims appears to raise the most questions and further clarification was needed. 

A “Made with Organic” claim may be used if a product contains more than 70% organic ingredients (excluding salt and water) and the remaining ingredients are either non-organic agricultural ingredients or (non-organic) nonagricultural ingredients included in the National List, 7 C.F.R. § 205.605.  Moreover, none of the non-organic ingredients (be they agricultural or nonagricultural) may be produced by excluded methods.

In addition, although the category is often referred to as “Made with Organic” claims, a claim “Made with Organic Ingredients,” or “Made with x% Organic Ingredients” is not permitted.  Specifically, the claim must specify the organic ingredients or organic food categories, i.e., “Made with Organic [specify ingredients and or food categories].”  However, the claim may not list more than three ingredients or food categories, i.e., a claim “Made with Organic [list four ingredients and categories]” is not permitted.  In addition, the regulation specifies the food categories that may be used.   

These are only the basic requirements, and certifiers and organic trade raised questions about possible % organic statements, claims when a product contains organic and non-organic ingredients in a food category (e.g., organic and non-organic vegetables), and other issues.  According to NOP, the guidance seeks to clarify such issues.  Concurrent with the final guidance, NOP issued a document summarizing its responses to comments to the 2011 draft guidance.  It also issued a separate document with examples of correct and incorrect “Made with Organic” labeling claims.      

The guidance took effect on May 2.  As noted in the Federal Register notice of availability, the guidance is not intended to be binding, and alternative approaches that demonstrate compliance are acceptable.  However, “the NOP strongly encourages industry to discuss alternative approaches with the NOP before implementing them to avoid unnecessary or wasteful expenditures of resources and to ensure the proposed alternative approach complies with the Act and its implementing regulations.”