The National Organic Program (NOP) published a final rule that amends the National List of Allowed and Prohibited Substances (National List). This rule became fully implemented January 28, 2019 (listed below) and, with the exception of the amendments for the substances ivermectin, favors, cellulose and glycerin, will be implemented December 27, 2019.
The new ruling on #favors requires the use of organically certified flavors whenever commercially available. Since the #USDA did not post guidelines or list what is commercially available, each certifying agency will have its own set of requirements, ranging from a simple form to more complex documentation. Regardless, any certified organic #tea using natural favors under the 95 percent rule will need to be re-evaluated using #organic certified favors or collect documentation that its needed flavor is not commercially available. Each agency will have to determine if a favor is considered commercially available or not at this time. To read the final rule in its entirety, please reference the federal register here.
Most flavors used in the tea industry are organic compliant natural non-GMO flavors, but these will no longer qualify for certification. Certified organic flavors will have to be used if commercially available.
Commercially Available
The definition for commercial availability is in the rule 205.2 Terms defined. “Commercially available. The ability to obtain a production input in an appropriate form, quality, or quantity to fulfill an essential function in a system of organic production or handling, as determined by the certifying agent in the course of reviewing the organic plan.” The reason why something is not commercially available must comply with the definition above: form, quality or quantity to fulfill an essential function and must not be based on price.
This poses several questions that are currently unanswered. For example, let’s take strawberry. There are many ways to make a strawberry flavor: typical strawberry used in kids’ drinks and medicines, red ripe strawberry, sweet slightly over ripened strawberry, unripe strawberry, wild strawberry, earthy strawberry, candied strawberry, etc. Even though certified organic strawberry flavor is readily available; can it be made organically in all these variations? Since each certifying agency will be making their own determination of what is considered “commercially available”, if one company submits strawberry as organically certified, will that mean that for that agency everyone will need to use certified organic strawberry flavor, even if your specific taste profile is not available? What about flavor suppliers? What if the flavor supplier you use and have partnered with cannot make your flavor certified organic? Is there an expectation that you would need to find another supplier to make it certified organic before you state it is not “commercially available”? And how many flavor companies will you need to contact?
As you may know, not all flavor houses know how to create flavors for tea, some excel at this while others struggle. Not to mention that, certified organic flavors are typically about 20-30 percent costlier and have about 1/3 the strength in aroma and taste. In talking to several tea manufacturers, the decision of what to do next will be challenging. There are basically three paths to take to comply with this new regulation:
1. To keep your organic certification, change the application of your 95% certified organic flavored teas to the 70%/30% category. The new ruling does not affect this category; though you will not be able to use the USDA logo.
2. Drop the 95% certified organic flavored teas from your organic certification; though you would only be able to mark the ingredients as organic in the ingredient statement. This could cause confusion with your customers, and if you are not certifying these, does it make sense to certify any of your teas?
3. Work with your flavor supplier (and most likely other flavor suppliers) to create the same tasting flavor but in a certified organic form; knowing this will drive up the cost of goods. Once approved, you will wait 3-12 weeks to get the certification from the flavor company and then another 3-12 weeks to get your flavored tea certified. With the December 27th deadline, you will want to start working on this change promptly.
Regardless of the route you take for your business, the decision is not an easy one to make. This new requirement for certified organic flavors will in some way affect your bottom line and will inevitably cause confusion for consumers and reduce the number of certified flavored teas available.
Not sure where to turn? Hula Consulting is happy to help you navigate your options along for your specific products! Contact us today to get started.
Organic Categories
100% Organic
· All organic ingredients
· Any processing aids used must be organic
· No non-organic ingredients are used
· USDA seal allowed
· Must list organic certification agency
Organic (95% Rule)
· At least 95% organic ingredients
· Remaining 5% can be non-organic allowed ingredients
· All agricultural ingredients must be organic unless not available
· USDA seal allowed
· Must list certification agency
Made with Organic Ingredients (70% / 30% Rule)
· At least 70% organic ingredients
· Remaining 30% can be non-organic allowed ingredients OR non-organic agricultural ingredients
· USDA seal PROHIBITED
· Must list certification agency
Products with less than 70% Organic Ingredients
· Any level of organic ingredients
· No restriction on remaining ingredients
· No certification claims can be made
· USDA seal PROHIBITED
· Only mention organic in ingredient listing
Final Rule on Flavors
“Flavors The Final rule amends the National List to revise the annotation of flavors in § 205.605(a) to change the allowance for nonorganic flavors to require the use of organic flavors when they are commercially available. The listing of flavors in paragraph (a) reads as follows: Flavors—non-synthetic flavors may be used when organic flavors are not commercially available. All flavors must be derived from organic or nonsynthetic sources only and must not be produced using synthetic solvents and carrier systems or any artificial preservative. This rule retains requirements that all flavors must be derived from organic or nonsynthetic sources only and must not be produced using synthetic solvents and carrier systems or any artificial preservative. This rule applies to products in the ‘‘organic’’ and ‘‘made with organic (specified ingredients or food group(s))’’ categories. This rule change does not apply to nonorganic ingredients that may be used in up to 30 percent of ‘‘made with organic’’ products. Due to the number of distinctly different natural flavors and the pace of new product development in flavors, AMS has determined it would be impractical to list individual flavors on the National List to indicate which are commercially available in organic form. AMS has reviewed and agrees with the NOSB recommendation that the annotation for flavors be amended to clarify its use in organic handling. AMS received comments on the proposed rule for amending the annotation.”