The Flavor and Extract Manufacturers Association (FEMA) released the following letter yesterday (Tuesday, January 23) concerning the confusion surrounding the use of flavors as ingredients in “organic” and “made with organic” products.
On January 11, 2007, Mark Bradley, associate deputy administrator of the National Organic Program (NOP), sent a notice (click here to view) to accredited certifying agents regarding the continued use of flavors as ingredients in “organic” and “made with organic” products. According to this notice, the NOP received a number of questions from certifiers regarding whether or not an organic handler must have specific flavors added to Section 205.606 of the NOP regulations for continued use in organic production after June 9, 2007. Bradley's guidance to the certifiers on this point has caused a great deal of confusion and misunderstanding. In fact, Bradley has given accredited certifying agents broad discretion to determine whether or not flavors are agricultural. If the certifier determines that a flavor is an agricultural product, the flavor must, according to Bradley, be “(1) certified organic or (2) be listed in Section 205.606 and be determined to be commercially unavailable in organic form in order to be used in products sold, labeled, or represented as organic.” As a result of this notice, FEMA member companies have been inundated with inquiries from their customers about whether or not the flavors supplied to them are organic compliant.
In an effort to clear up this confusion, FEMA sent a letter to Bradley asking that he send a follow up notice to certifiers to clarify that the National Organic Standards Board (NOSB) recently approved sunset renewal for another five years for non-synthetic, non-organic flavors and those flavors are currently not considered to be agricultural products under Section 205.605(a). As long as flavors are on the National List, they should not be required to be certified as organic or petitioned for inclusion in 205.606 for use in “organic” or “made with organic” products. The notice from Bradley is also linked below for your information and review.
Non-synthetic flavors suitable for use in “organic” or “made with organic” products are rightfully defined in 7 CFR Part 205.605(a) as non-agricultural, non-organic substances which are “non-synthetic sources only and must not be produced using synthetic solvents and carrier systems or any artificial preservative.” Moreover, as Bradley points out in his notice, the “NOSB is still working on recommendations to the NOP on how to distinguish between agricultural and non-agricultural products. Once the NOSB has made its recommendations, NOP will provide any necessary additional guidance on how to make those determinations.”
From a flavor perspective, flavors have been clearly defined according to 7CFR Part 205.2 as a non-agricultural substance (“a substance that is not a product of agriculture, such as a mineral or bacterial culture, that is used as an ingredient in an agricultural product. For purposes of this part, a non-agricultural ingredient also includes any substance, such as gums, citric acid or pectin, that is extracted from, isolated from or a fraction of an agricultural product so that the identity of the agricultural product is unrecognizable in the extract, isolate or fraction.”) We therefore contend that as the NOP and NOSB better define agricultural and non-agricultural products, flavors do not need to be part of this review. Questions from certifiers about natural and botanical ingredients contained in natural flavors should be outside the scope of agricultural products as already defined since ingredients such as natural botanicals are extracted from or isolated from agricultural products and therefore are no longer recognizable as those agricultural products.
The NOP has not provided, nor should it provide, guidance to the certifiers on this point without direction from the NOSB on this matter.
—MJ Marshall (FEMA)