Feds sued for shutting cosmetics out of organic program

WASHINGTON, DC, June 14, 2005 (ENS): A consumers group and an organic soap company are suing the U.S. Department of Agriculture (USDA) to keep access to the National Organic Program for qualifying non-food products.

The Organic Consumers Association and Dr. Bronner's Magic Soaps / Dr. Bronner's & Sun Dog's Magic, makers of certified organic food grade lotions, lip balms and body balms, jointly filed the lawsuit in federal court today.

The complaint filed in the U.S. District Court for the District of Columbia seeks a court order to stop a new USDA policy that attempts to ban any labeling or marketing of products that are certified to comply with the National Organic Program (NOP) standards.

The new policy will go into effect on October 21, unless the court rules in favor of the plaintiffs.

"It is our responsibility to fight the USDA's illegal policy which discourages organic farming, wipes out millions of dollars in investment in certified organic non-food products and violates basic rule making procedures in the Administrative Procedures Act," says Ronnie Cummins, founder and national director of the Organic Consumers Association.

In a foundational May 2002 Policy Statement on the scope of the National Organic Program, the USDA made clear that producers of non-food products such as personal care containing agricultural ingredients "are eligible to seek certification under the NOP."

Based on this "Policy Statement," Dr. Bronner's and other producers of body care products and other non-food products such as pet foods invested in sourcing and formulating with NOP certified organic ingredients. They sought and obtained certification under the NOP, which allowed them to label and market their products as certified "organic" or "made with organic" under the NOP and use the organic seal.

Certifying agencies understood the Policy Statement to authorize such certification.

In April 2004, the USDA issued a Guidance Statement reversing this position and indicating that producers of personal care products would not be eligible to seek certification.

A month later due to consumer and industry outcry, that Guidance Statement was rescinded by then Secretary of Agriculture Ann Veneman.

But last month, the USDA issued an informal "response" to a statement of the National Organic Standards Board and, in that response, indicated again that personal care products are not eligible to be labeled in accordance with the National Organic Program.

The newest USDA policy mirrors the rescinded Guidance Statement, and contradicts the foundational 2002 USDA policy that formally invited body care companies to invest in certifying National Organic Program qualified products, the lawsuit claims.

David Bronner, president of Dr. Bronner's Magic Soaps, said, "Having issued a policy statement intended to have a binding effect, on which Dr. Bronner's and other companies justifiably relied, NOP cannot suddenly, without notice or opportunity for comment, adopt a new policy and purport to make it enforceable against producers of personal care products."

"We have been advised that, under well established principles under the Administrative Procedure Act, to adopt such a change in its previously established policy, USDA is required to proceed by notice and comment rulemaking," he said.

Lynn Betz, co-founder and president of Sensibility Soaps, Inc. said, "As a certified processor under the USDA NOP since July 2003, our company developed 21 personal care products, which were certified "organic" by PA Certified Organic using the current NOP food standards."

"Since the scope of the NOP included personal care products, and products carrying the seal were legitimately certified, why should these products now be excluded?" she asks.

"Organic olive oil does not become magically non-organic when used in a lotion instead of a salad dressing," said Bronner. "Consumers and retailers want personal care that is nothing less than organic food for the skin. High quality certified organic body care products like ours should be distinguishable from low-quality so-called "organic" personal care that is based on standard conventional synthetic ingredients."

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