The National Organic Program (NOP), administered by the United States Department of Agriculture’s Agricultural Marketing Service (AMS), relies on a system of third-party certification. The Organic Foods Produc- tion Act of 1990, the authorizing legislation for the NOP, states that the “Secretary shall implement the program . . . through certifying agents.”426 In regulations promulgated in 2000, AMS set the organic standards that cover the production, postharvest handling, and processing of organic foods and specified the third-party certification system that would determine whether a certain product met those standards.427
These regulatory standards are voluntary in that food producers or handlers are only required to conform to them if they label their products
420. Id. § 1910.7(�)(1)(i)–(ii) (describing how fees are determined and stating that the
fees reflect the full cost of performing the listed activities).
421. OSHA, Fee Payment Instructions and Information, U.S. DEP’T OF LABOR,
http://www.osha.gov/dts/otpca/nrtl/nrtlfees.html (last visited Nov. 29, 2013); see also OSHA, Nationally Recognized Testing Laboratories—Fees; Public Comment Period on Recognition Notices, 65 Fed. Reg. 46,798 (July 31, 2000) (to be codified at 29 C.F.R. pt. 1910), available
at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGIS
TER&p_id=15480.
422. Nationally Recognized Testing Laboratories Fees, 76 Fed. Reg. 10,500 (Feb. 25, 2011), available at http://www.gpo.gov/fdsys/pkg/FR-2011-02-25/html/2011-3937.htm (last visited Nov. 29, 2013) (revising the fee regulations).
423. OSHA, Fee Schedule (effective March 28, 2011), U.S. DEP’T OF LABOR, http://www.osha.gov/dts/otpca/nrtl/nrtlschedule.html (last visited Sept. 11, 2012).
424. Id.
425. Id.
426. 7 U.S.C. § 6503(d) (2012).
427. The final organic rule was published on December 21, 2000, and the regulations implementing the NOP became effective October 21, 2002. See 7 C.F.R. § 205 (2013).
as organic. However, i� food producers or handlers label their products as organic, it is mandatory that they use an accredited third party to provide the required certification.428 The certifying agents are responsible for all aspects of the certification process: conducting inspection as necessary to verify compliance with regulatory requirements, issuing certification deci- sions, issuing notices of noncompliance, and suspending or revoking the certification of clients that are out of compliance.429
As shown in Figure 7, third-party certifying agents are directly accred- ited by the AMS. They may be private or governmental entities, and under certain circumstances, the agency may accept a foreign government’s ac- creditation o� foreign certifying agents.430 To be accredited, the entity must
have sufficient expertise and adequately trained personnel to comply with the terms of the organic certification program.431 Certifying agents must
also conduct an annual program review of their certification activities and correct any noncompliance,432 and they must maintain records of certifica-
tion processes and make them available for inspection upon request.433 As of 2012, about ninety entities—about fifty domestic and forty foreign— were accredited by the NOP to act as certifying agents.434 Examples of domestic certifying agents include private organizations like Global Organic Alliance, Inc., based in Ohio, and the Idaho State Department of Agricul- ture’s Division o� Plant Industries.435 Overall, state agencies constituted
seventeen of the fifty-one domestic organic certifiers.436 Examples o� for- eign domestic certifying agents include Argencert S.A., based in Argentina, and CAAE Certification Service, based in Spain.437
The NOP regulations include several provisions to avoid potential con- flicts of interest.438 Certifying agents are required to prevent conflicts of
interest by not certifying operations that they have any commercial interest
428. National Organic Program: Organic Certification & Accreditation, U.S. DEP’T OF
AGRIC., http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=Template
N&navID=NationalOrganicProgram&leftNav=NationalOrganicProgram&page=NOPAccre ditationandCertification&description=Accreditation%20and%20Certification&acct=nopgen info (last visited Nov. 29, 2013).
429. 7 C.F.R §§ 205.403–205.406 (2013). 430. Id. § 205.500(c) (2013).
431. Id. § 205.501(a)(1)–(6) (2013).
432. Id. § 205.501(a)(7) (2013).
433. Id. § 205.501(a)(9) (2013).
434. National Organic Program: Organic Certification & Accreditation, supra note 428.
435. See Complete Domestic ACA List, U.S. DEP’T AGRIC., http://www.ams.usda.gov/ AMSv1.0/getfile?dDocName=STELPRDC5074486 (last visited Nov. 29, 2013).
436. Id.
437. See Complete Foreign ACA List,U.S.DEP’T AGRIC., http://www.ams.usda.gov/AM Sv1.0/getfile?dDocName=STELPRDC5074487 (last visited Nov. 29, 2013).
in, excluding the participation of employees or contractors that have any such commercial interests, not permitting employees or contractors to accept any payment or gifts other than prescribed fees for certification, not providing consultation services to certified operations, requiring employees and contractors to complete annual conflict-of-interest disclosure reports, and requiring that the decision to certify be made by someone different from those conducting prior certification activities.439
FIGURE 7: STRUCTURE OF THIRD-PARTY PROGRAM FOR ORGANIC
FOOD LABEL
The regulations provide that AMS will conduct on-site reviews of ac- credited certifying agents. Such reviews encompass “the certifying agent’s certification procedures, decisions, facilities, administrative and manage- ment systems, and production or handling operations certified by the certifying agent.”440 Such reviews should occur before or soon after initial accreditation, before renewal of accreditation, and one or more times during the five-year period of accreditation.441 NOP reports that fifty-six such onsite reviews or inspections occurred in 2012.442
439. Id.
440. Id. § 205.508(a).
441. See 7 C.F.R. §§ 205.508(b), 205.500 (2013) (specifying that the duration of ac-
creditation is five years).
442. Telephone Interview with Cheri Courtney, Acting Dir., Accreditation & Int’l Activities Div., Nat’l Organic Prog. (Aug. 16, 2012). Some audit reports and corrective action reports can be found on the NOP website. See Appeals and Settlement Reports, U.S. DEP’T AGRIC., http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template= TemplateJ&page=NOPReadingRoomHome(last visited Sept. 9, 2012).
AMS
Third-Party Certifying Agents accredits
that certify
Food Products marketed as Organic
Organic Standards
The authorizing legislation stated that the NOP should provide for the “collection of reasonable fees from producers, certifying agents and handlers who participate in such program.”443 The NOP regulations specify that the cost of the program’s accreditation services will be collected from applicants for initial accreditation and accredited certifying agents for review of annual reports and accreditation renewal.444 In 2010, the average cost to a domestic
certifying agent applicant was $4,428, and the average cost to a foreign certifying agent was $24,082.445