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Complaints Filed with the USDA-NOP

If you own a company that makes personal care products and uses organic claims on your products, you may want to seriously study the issues in the recent complaint filed with the USDA- NOP by OCA and Dr. Bronner’s Magic Soap, and Essential Organics against personal care brands that use “organic” claims.

The “Complainers” are saying that the “Defendants” are “cheating” because, regardless of the amount of organic content these companies use, they are not certified to the USDA-NOP. The “complainers” hold the view that the defendants, should not have the right to use the word “organic” unless they are certified to the USDA-NOP.

The USDA-NOP is an agricultural agency dedicated to supporting American farmers and ranchers. The NOP (Nat’l Organic Program) was originally conceived (in 1991) as a labeling program to create an “even playing field” for organic products in interstate commerce and on the international market. Throughout the law it refers to “food”, 35 times in fact. There is no reference to personal care. If you can make it and label it as though it were a food, then you may get certified. The NOP has published a document on their web site that states that a personal care product MAY be certified to the NOP but it may also get certified to a private standard. They also state that they have no jurisdiction over cosmetic labels, as that is the job of the FDA.

What Ifs:
IF this complaint were to be acted on by the NOP, IF they could because they had jurisdiction and IF there were laws that any of these companies had violated, what would happen?* NOP would begin to mandate that all personal care companies be certified to the NOP.

What Is NOP Organic?
In order to make an “organic” claim, ALL of your ingredients, except for the few that are listed in the law as “allowed non-organic” must be certified organic to the NOP. The “allowed” list includes non-organic glycerin and tocopherol and a few other things. These must be used in less than 5%. That means, no, you may not use just a couple of drops of non-organic jasmine or sandalwood oil because they are NOT on the “allowed list”. You could not add a little bit of ANY non-organic emulsifier. Your only preservation option would be org. alcohol. You’d need to have a current certificate for every single organic ingredient you use and it would probably cost around 1800.00 per year or more to get and stay certified.

In the complaint Bronner, et al, includes the Stella McCartney products – this line is certified to the EcoCert Organic Cosmetic Standard. In France law requires that they include water when calculating any label claim. Their label laws wants consumers to know the actual percentage of a package that makes any claim. Under the U.S. organic law we exclude water. So here someone can make a product that is water, salt and a few drops of lavender oil and call it “95% organic” – even though it is actual less than 1% organic in total. In France and under EcoCert it is the actual percentage of the total. International laws make this type of labeling complicated so the OCA complaint about that product line may be wrong – if they calculated it the same way we do, they may well meet the threshold of 95% for certain products. If you were to apply the same principle as the French use to “made with organic” soap, the label would have to claim around 5% of the total as “organic” content. Liquid soap would not meet the EcoCert standard for skin care, for example. They make an exception for soap and allow it to be 5% and use the claim. I think that may be the more honest approach.

That leaves the big question of how we create credibility for organic claims? In the food industry, the organic farmers and food processors worked for over 40 years to get their standard made and passed into law. We don’t use preservatives in food because we cook it or refrigerate it, and then we use it up or feed it to the dog. It doesn’t stay on the bathroom shelf for 4 years. As to emulsifiers, egg yolks and mustard are dandy emulsifiers – again for food. Not a good idea for skin care.

How do we get a standard that recognizes the unique challenges of cosmetic formulation and product shelf life? Do we use a food standard? Is that a smart thing?

I continue to be struck by the fact that no one will buy a product that does not perform to meet a consumers expectation. I suspect that the reason I never see USDA shampoos, lotions and conditioners in the stores is because they do not sell well. (Frankly, I am well over 50 and darned if I will use alcohol on my skin).

Personally, I want to see strong standards that are credible. I think the EcoCert Standard and the OASIS Standard are both valid standards that will evolve into the future of “organic” cosmetics. I know from the history of the organic food movement that we need a solution to a problem that includes some real challenges:
Thousands of small businesses, all of whom have (sort of) made their own rules about what their “organic” claim means.
Insufficient organic ingredients to emulsify and preserve products that perform.
International legal labeling issues that should be integrated into any standard.
And a lack of clarity due to both deliberate and unintentional misinformation.

I would like to see all of the non-certified personal care companies make the effort to understand the NOP rules (call me – happy go over your ingredient statement and explain where you fit) and to work together to create a plan to serve all these small businesses and their very specific needs. The food regulations were never intended to do this and soap is certainly not food.

* A judge has already examined the charges in the complaint and ruled that there was no violation of law. Actually, 2 judges.

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