USDA Publishes Strengthening Organic Enforcement Final Rule

The United States Department of Agriculture ("USDA") published the Strengthening Organic Enforcement ("SOE") Final Rule to improve farm-to-market traceability, deter and detect instances of organic fraud, increase oversight, and improve enforcement mechanisms in the production, handling, and sale of organic products.

On January 18, 2023, the USDA published the most sweeping updates to the national organic regulations since the creation of the program through the SOE Final Rule. With the rise of organic fraud (i.e., non-organic products being deceptively represented as "organic"), the SOE Final Rule intends to improve transparency and supply chain traceability to deter and detect such conduct. 

Enacted into law on December 20, 2018, the Farm Bill directed the USDA to implement a number of key programs, and through this SOE Final Rule the agency is implementing the following key provisions:

  • Reduce the number of uncertified entities operating throughout the supply chain without USDA oversight;
  • Require National Organic Program ("NOP") Import Certificates for all organic products imported into the United States; and 
  • Clarify NOP's authority to oversee operation certification activities.

The following takeaways illustrate how stakeholders' existing operational practices and regulatory compliance strategies may be impacted: 

  • Certified Organic Operations are required to engage in robust recordkeeping, fraud prevention procedures, traceability audits, more frequent data reporting, and procedures for keeping organic system plans up to date. 
  • Certifying Agents & Organic Inspectors are required to increase on-site inspections and adhere to uniform qualification and training standards.
  • Foreign Government Organic Programs must request equivalence determinations from the Agricultural Marketing Service to establish the eligibility of products as organically produced in the United States. 
  • Organic Producers/Handlers are required to create identifying organic labels and traceability documentation for non-retail containers and follow procedures for calculating the percentage of organically produced ingredients. 
  • Brands and Retailers selling products labeled as organic are likely to see an increase in consumer claims alleging organic fraud theories in light of the enactment of the Final Rule.  
  • Producer Group Operations must follow standardized certification requirements and use internal control systems to monitor compliance. 
  • Uncertified Entities (e.g., brokers, traders, distributors, importers and brand owners) that violate the Organic Foods Productions Act of 1990 may be subject to enforcement actions by the NOP.

The Final Rule will become effective on March 20, 2023. 

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