*Certifiers are required to function as agents of the government      

 and their sole function is to administer aspects of the government's program.

 They are not allowed to operate their own programs with the proviso that they

 meet or exceed the legal standard.



        *The continued use of private logos or trademarks is marginalized so

		as to make them irrelevant.



        *Accreditation criteria are limited to assuring that the certifier

		functions as an agent of the government.



        *Certifiers are not given the authority to terminate certification.

This interpretation of the law, of course, makes it impossible for certifiers to exceed the legal standard and be recognized in the marketplace for doing so. As long as certifiers are extensions of the government's certification program that makes sense. As mere "agents" of the government, certifiers cannot be allowed to do anything but perform functions for the government's program.

As early as 1995 the North Dakota Department of Agriculture, Farm Verified Organic Inc. and the Organic Crop Improvement Association recognized that such a position presented potential problems for foreign trade. If the USDA legal standard did not meet the requirements of international trade, and private certifiers were not allowed to exceed the legal standard, then US producers and manufacturers would not be able to export their products.

After months of negotiations concerning this problem a USDA official was invited to address the issue at a meeting organized by the North Dakota Department of Agriculture on January 7, 1995. Despite earlier statements to the contrary, the official announced that "it had always been the position of USDA to allow private certifiers to certify to any standard required by foreign importers and to use their seals to designate certification to that standard." During the question period that followed, the official made it clear, however, that such differentiation would not be allowed inside the US.

This, of course, still left the industry with a problem. If private certifiers could not use their seals or logos to differentiate product that exceeded the legal standard in the US, it meant that producers or manufacturers could not exceed the legal standard and have such efforts certified.

More recently NOP staff have indicated that producers and manufacturers COULD exceed the legal standard and label their products accordingly, so long as the labels were true, and that private certifiers COULD verify such claims and issue "certificates" as proof of verification. However, private certifiers still would not be allowed to use their seals or logos to designate that a product met any requirement other than the "farming and handling requirements . . . provided for in the Act and the regulations" proposed by USDA. [Proposed Rule, 205.301 (b) (2)]

There are two major problems with this new position. First, it assumes that verification can be done on an ingredient by ingredient basis. Second, when producers or manufacturers exceed the legal standard with respect to NUMEROUS "ingredients" they will need to acquire and provide a stack of "certificates" and a Sears Roebuck laundry list of label claims. Both make the proposal unworkable.

To assume that certifiers can verify additional claims on an ingredient by ingredient basis is to misunderstand how certification works. Reliable certification requires that STANDARDS, INSPECTION, CERTIFICATION DECISION and AUDIT TRAIL are ALL a piece of the same fabric. The standards have to be clear and publicly stated. The requirements for meeting the standards have to be explicit. The inspectors doing the on site inspections to determine whether the standards are met have to be trained to inspect to those standards. And the audit trail has to be established to confirm that those standards are adhered to throughout the food chain. There is no way that certifiers can reliable track hundreds of different label claims through the system. That means that consumers could not have confidence in the label claims, nor could certifiers assume the liability for certifying such multiple claims.

Furthermore, neither certifiers or buyers could be expected to maintain an effective tracking system for multiple "certificates" to assure that label claims are true. Imagine a foreign buyer of Northern Plains organic grain who needs to have verification that a container of organic wheat must not only meet the US legal standard, but also the IFOAM standard, before s/he can import the product into Europe. This would require that s/he produce a series of certificates verifying that no chilean nitrate had been used, that no piperonyl butoxide had been used, that no magnesium sulfate had been used, that no potassium sulfate had been used, that no arsenic had been used, and on and on and on. Since these are all materials that could be used under certain circumstances in the proposed rule, but not allowed by IFOAM standards, a certificate would be required for each material before it could be certified as meeting the IFOAM standard.

Similarly, if a US producer wanted to label an animal product as having been produced without antibiotics and without parasiticides, and that the animal always had access to the outdoors, was humanely raised and always fed 100% organic feed, he would need to put each of these claims on the label and have a certificate of verification from the certifier that each of the claims was true.

No certifier could verify such a laundry list of claims apart from making such claims an integral part of the certification system, and no buyer will tolerate the need to obtain and maintain such a blizzard of certificates.

If USDA were simply to adopt the interpretation of the OFPA suggested in the Senate Report all of this nonsense would disappear. Private and state certifiers would then enter into a partnership with USDA and operate their own programs in accordance with publicly declared standards, which would have to meet or exceed the requirements of the legal standard. That arrangement would allow the free market to respond to consumer demand, facilitate trade, and enable producers and manufacturers to market their products into specific market niches with confidence.

Such an arrangement would not, in any way restrict trade. The USDA standard would still be the one, legal standard that everyone would have to meet to use the organic label, and no one (state or private) could demand that their logo be used as a condition for labeling the product as organic. This could not be a requirement any more than the kosher label can be made a requirement for trading meat in the US. But it would enable producers and manufacturers to voluntarily choose a logo or label to differentiate their product with confidence and market that differentiation.

Preventing private certifiers from operating their programs in this manner is an infringement of free commercial speech, and preventing state certifiers from similar authority is an infringement of states rights. The OFPA correctly places limits on such rights, preventing such differentiation from being used as a trade restriction or to make claims that the product so labeled is superior to products produced in accordance with the legal standard. Those are reasonable restrictions. Preventing certifiers from exceeding the legal standard and being recognized in the marketplace for doing so is an unreasonable and unconstitutional restriction.