Consumers Union and Organic Consumers Association Petition the FTC To Do What the USDA Says It Cannot

By Riëtte van Laack –

For several years, the Consumers Union and the Organic Consumers Association (“Petitioners”) have urged the U.S. Department of Agriculture (“USDA”) to require that personal care products that use the term “organic” in product labeling comply with the requirements of the Organic Foods Production Act of 1990 (“OFPA”) and the USDA National Organic Program (“NOP”) implementing regulations.  USDA has consistently refused to do so on the grounds that the Agency has no authority over the labeling of personal care products that do not claim to meet USDA organic standards, or that do not consist of agricultural ingredients.  The Agency has, however, agreed that a personal care product may carry the USDA organic seal (permitted only on products that are “100% organic” and “organic”), provided that the product meets the applicable NOP standards.  Thus, a personal care product that bears the USDA organic seal must meet NOP standards; however, if the same product is labeled as “organic” but does not carry the USDA seal, then the NOP standards do not apply. 

USDA’s approach has complicated matters because under certain circumstances NOP standards apply and under seemingly similar circumstances NOP standards do not apply.  For a personal care product labeled as “organic,” the presence of the seal is crucial to determining applicability of the NOP standards.  In contrast, a food labeled as “organic” always must comply with the NOP standards, even if it does not carry the USDA organic seal.  In addition, because USDA does not regulate the use of organic claims without the USDA organic seal on personal care products, other independent organizations have stepped in and launched their own organic certification programs.  As a result, a multitude of standards, including the OFPA/NOP standards, exist for personal care products.  Petitioners assert in a recent complaint to the Federal Trade Commission ("FTC") that the presence of these different standards causes confusion in the marketplace and weakens consumers’ confidence in the organic label on foods.  

Petitioners believe that the OFPA, specifically 7 U.S.C. §§ 6501 and 6505, gives USDA the authority to enforce OFPA’s and NOP’s requirements to any personal care product carrying an “organic” claim.  Petitioners do not address USDA’s position that personal care products that are not agricultural products are not covered by the OFPA, or USDA’s assertion that it lacks authority over personal care products that do not claim to meet USDA organic standards.  Instead, Petitioners ask FTC to stop and prevent any further deceptive use of “organic” claims not compliant with the NOP standards.  They assert that organic labeling of personal care products not compliant with the NOP standards constitutes a violation of section 5 of the FTC Act.  Petitioners ask FTC to further investigate organic claims on personal care products, to consider means of working with USDA to prevent the deceptive use of organic claims, and to prohibit the use of non-NOP compliant organic claims on personal care products.