PCC Comments to NOSB on various topics

April 5, 2015

National Organic Standards Board
1400 Independence Avenue, SW Room 2648-So, Ag Stop 0268
Washington, DC 20250-0268

Docket # AMS-NOP-15-0002

Dear NOSB members,

PCC Natural Markets is the largest consumer-owned retail grocer in the United States. We have 10 stores in five cities of western Washington and nearly 55,000 active member households.

Our commitment to organic agriculture is built into our overarching Ends Policy, which declares our purpose as to create an environment where the organic supply chain can thrive.

We maintain certification as an organic handler for our produce, meat and seafood, bulk grocery, deli cheese, and espresso departments to ensure organic integrity is maintained to the shopper’s cart. We also are an active participant in the Non-GMO Project,

We have comments on the following topics:

  1. nanotechnology
  2. Sunset Provision changes
  3. OFPA measures unfulfilled
  4. Non-GMO verification
  5. Handling Committee

  6. Livestock Committee

1. Nanotechnology

It is disheartening to organic consumers and certified organic retailers, such as PCC Natural Markets, to see the NOP’s March 24 memo on nanotechnology. Instead of honoring the views of the international and U.S. organic community and the NOSB recommendation, NOP is taking an opposite position, opening the door for manufacturers of nanotechnology products to petition NOSB for use of nano materials in organic foods.

The organic community consistently has called for engineered nano materials to be prohibited from organic production and processing. The NOSB has agreed, stating in its October 28, 2010 recommendation, “There is an overwhelming agreement within the organic industry to prohibit nanotechnology in organic production and processing at this time.” [emphasis added]

The same features that make engineered nanomaterials unique (small size, high surface-area-to-volume ratio, high reactivity) reportedly can have negative consequences for human health. The Food and Drug Administration has told food manufacturers engineered nano materials are fundamentally different. FDA told manufacturers they should not assume nano ingredients are safe, and they should study nanoparticles to determine if they need regulation. As FDA said, they “have novel properties and functions because of their small size. (see http://www.fda.gov/nanotechnoloL’V/.)

The comments we hear from our shoppers clearly show they want to avoid nano materials in food and personal care products out of concern that at least some nanoparticles may permeate cell walls and organs with indeterminate health risks.

While prominent non-organic companies, such as Dunkin’ Donuts, are taking steps to remove nanomaterials from their foods, NOP is creating a pathway for nanomaterials to enter organic foods. Why would a shopper choose to purchase organic when it contains the same additives as non-organic foods?

NOP’s view is even more confounding since it jeopardizes NOP’s equivalency agreements with other countries’ organic standards. We understand Canada, Australia and Austria have prohibited nanoparticles smaller than 100 nanometers (nm) from organic foods, and the U.K. prohibits nanomaterials smaller than 200 nm. NOP’s stance could jeopardize these agreements.

NOP’s failure to mention nanoparticles in packaging also falls short of consumer expectations, since nanos in packaging are a common application.

Fundamentally, nanomaterials do not belong in the U.S. organic program. Engineered nanomaterials are synthetic, can be toxic, are not found in nature in the manufactured form, and risk international organic equivalency agreements. The NOP guidance must change.

2. Sunset Provision changes

See: attachment #1 and attachment #2

More than 65 retailers – including many organic certificate holders – respectfully have asked the Congressional Organic Caucus to urge NOP to reverse its changes to the Sunset Provision. A copy of the letter is provided as attachment #1.

We believe any plain reading of the Organic Food Production Act (OFPA) shows it meant to establish a very high hurdle to add an exemption to the National List, and a very high hurdle to renew an exemption -not a high hurdle to allow, and a low hurdle to renew.

Now, even if nine NOSB members oppose relisting, a six-vote minority favoring continued use determines the outcome. USDA’s rule change is contrary to OFPA’s clear intent to require a higher level of consensus across the full range of organic stakeholders for Decisive Votes (a supermajority) – to ensure both credibility of the organic label and public support for organic products.

The 73 signatories to our letter also ask, respectfully, that NOP honor the full notice and comment rulemaking procedures outlined by the Administrative Practices Act when there are changes NOP considers important. Issuing rules by fiat undermines the unique authority and role of the NOSB, jeopardizing consumer trust in anything labeled organic.

Consumers care greatly about ingredients in organic food and they are paying attention to the synthetics admitted to the National List. See attachment #2, a sampling of three recent consumer letters on carrageenan.

Consumers are watching. When the USDA/NOP strike at the heart of organic integrity and trust, and the market loses trust in the process, then we all might as well pack our bags.

Trust and faith in the institutions monitoring our food supply, and the NOP saying it will listen to us as consumers and retailers, is all we have. If we chink at the process here and there, pretty soon, faith in the brand can be lost.

3. OFPA measures unfulfilled

Two other OFPA provisions appear to be contravened by USDA’s long-term management of the organic program:

1) Sec. 2119 (j) “Other Terms and Conditions” states “The Secretary shall authorize the Board [NOSB] to hire a staff director …”

To date, staff directors have been hired not by the Board as the law stipulates, but rather by the USDA. This must be addressed.

2) Sec. 2119 (j) (3) “Technical Advisory Panels” says, “The Board [NOSB] shall convene technical advisory panels to provide scientific evaluation of the materials considered for inclusion in the National List …”

To date, TAPs have been convened by USDA unilaterally, not the Board, as stipulated by the law. Selection of TAP reviewers by USDA has become so shrouded in secrecy that NOSB members do not even know who the TAP reviewers are. This must be rectified.

4. Non-GMO Verification

While we understand organic standards are a process-based system, we also recognize NOP incorporates occasional testing to ensure compliance. We believe it’s entirely consistent for NOP to require testing to verify the organic-is-non-GMO claim.

We’ve heard consumers say for years that there’s no truly non-GMO organic corn anymore because all organic corn is polluted. We’ve been told buffer zones are inadequate, that pollen drift is jeopardizing organic crop sales, and that contaminated organic loads are being rejected. This our organic community has done to itself, by talking very publicly about the risks of GMO contamination. The organic community itself is very heavily responsible for calling out the need for the Non-GMO Project.

The NOP must wake up and acknowledge that when OFPA declares GE as an excluded method of production, best practices alone are no longer sufficient to earn consumer trust. Testing is expected and must be utilized, under rigorous rules. The consumer market is much more sophisticated than it was in 1990 when OFPA was written. Organic consumers today want and demand more rigor than NOP currently is providing.

NOP must adopt rigorous testing protocols, equivalent to the rigor of the Non-GMO Project, to verify organic non-GMO claims. Anything less will be seen as weak and insufficient since the Project’s standard already have been accepted by consumers and the food industry as the national non-GMO standard. NOP could and should adopt the standards of the Non-GMO Project as the USDA organic program.

5. Handling Committee

whole algal flour

We understand the petition is to add Whole Algal Flour to the National List as an allowed non-organic agricultural ingredient when organic forms are not available.

We understand the Handling Subcommittee decision is based on the fact that alternatives are available and, therefore, whole algal flour is not essential in organic handling. We wish to add also that there is slowing market demand for highly processed niche foods, such as algal flour. Consumers are seeking foods they can recognize as coming from a farm.

We support the Handling Subcommittee proposal not to add Whole Algal Flour to the National List. This ingredient should continue to be prohibited in organic products.

Sodium lactate

See: attachment #3

We understand NOP has asked NOSB to review petitions asking for sodium lactate and potassium lactate to be allowed in organic handling.

PCC Natural Markets asks NOSB to consider this request carefully, since sodium lactate, at least, typically is made from fermented corn or beets and has multiple technical effects. It is used for flavor and, at certain levels, as an antimicrobial preservative.

Sodium lactate is not allowed even in “natural” meat products. (See our letter about sodium lactate to NOSB from December 7, 2009, attachment #3) and could appear incongruous to be allowed in organic handling and processing. Consumers expect organic standards to be more rigorous than standards for any product labeled “natural.”

A further concern with sodium lactate (and other synthetics) is the GMO status of the fermentation medium, since beets and corn are common substrates.

Tocopherols – (comment by PCC nutritionist Nick Rose, M.S.)

Synthetic tocopherols should not be allowed in organic foods, because they are:

  1. harmful to human health
  2. unnecessary, since natural tocopherols are widely available
  3. inconsistent with organic consumers’ expectations for organic food

Synthetic tocopherols are easy to identify in ingredient lists, since they are listed as dl-alpha-tocopherol, rather than d-alpha-tocopherol, which is the natural form of this essential vitamin.

According to the Linus Pauling Institute, “Synthetic alpha tocopherol is less bioavailable and only half as potent” as natural tocopherols.

Synthetic tocopherols are absorbed, however, and stored in the body. When vitamin E is needed, the weaker, synthetic version is drawn from storage but is unable to perform the roles in the body that make this vitamin essential.

Synthetic vitamin E tocopherols also are more likely to contribute to bleeding problems when consumed in excess.

These issues raise concern about the use of synthetic tocopherols as an ingredient in Earth’s Best infant formula.

Natural tocopherols, derived from liquid vegetable oils, are widely available.

Synthetic tocopherols are not derived from a natural food source. Instead they may be derived from petroleum and, therefore, do not meet consumers’ expectations of organic foods.

We urge the NOSB to prohibit synthetic tocopherols in organic foods (notably infant formula) because they are harmful to health and natural tocopherols are widely available. Synthetic tocopherols are inconsistent with consumer expectations.

Palm olein (comment by PCC nutritionist Nick Rose, M.S.)

We also are concerned about the use of palm olein in Earth’s Best certified organic infant formula. It’s one of only two items found in our stores with this ingredient. The other is not organic.

Palm olein (PO) is produced by heating palm oil (or coconut oil) and separating the liquid “fraction” of the fats (which becomes palm olein) from the solid “fraction” of the fats (which becomes fractionated palm oil). These oils may be solvent treated and/or hydrogenated, but expeller-pressed options seem to be available.

This ingredient is not “good for you” and there’s little research on effects. According to this 2006 study (J Am Coll Nutr. 2006 Apr;25(2):117-22): “The use of PO in infant formulas to match the human milk content of palmitic acid has unintended physiological consequences including diminished intestinal absorption of fat, palmitic acid and calcium, and lower bone mass.

We urge the NOSB to prohibit palm olein from certified organic foods.

Fish oil – (comment by PCC Public Affairs Editor, Eli Penberthy)

Fish oil currently is listed at §205.606 as a nonorganically produced agricultural product allowed as an ingredient in or on processed products labeled “organic.” We understand it is up for 2017 Sunset and that NOSB is seeking information now to help with its review and decision. PCC Natural Markets recently has researched fish oil to address current concerns.

Production of fish oil today often violates the fundamental tenets of organic food production to “promote ecological balance and conserve biodiversity.”

Currently, most fish oil for human consumption comes from anchovy, mackerel, salmon, sprat, sardine and herring. Fish oils also come from deep sea fish and predators, such as cod, pollock, swordfish, spearfish, marlin and tuna. Depletion of top-level predators, such as tuna, is of great concern to environmentalists and consumers. Extensive harvesting of fish at lower levels of the food chain has substantial impacts on the food supply for predators.

The largest fish oil fishery, the anchovy fishery in northern Peru, provides 73 percent of omega-3 fish oils. Industrial fleets there generally are well regulated by the Peruvian government. But some parts of the fishery do not adhere to quotas, and little is known about whether all boats comply with regulations. Another problem is that the industrial fishery allegedly is causing pollution and social inequity in coastal communities.

Morocco is another source of anchovies for fish oil. There’s a lack of transparency in how the fishery is managed and there appear to be no quotas.

There are other ecological impacts beyond overfishing. In the Arctic cod fishery, which provides 12 percent of fish oils, fishing vessels use equipment causing moderately high by-catch.

In the Alaskan pollock fishery, which provides 4 percent of fish oils, sensitive species live on the ocean floors. Methods of fishing for pollock can threaten these species.

Some fish oils come from farmed salmon. Salmon farming is infamous for polluting the ocean with waste and antibiotics, spreading disease to wild species, and threatening biodiversity. Farmed salmon also have been found to contain 16 times the levels of PCBs as wild salmon. Fish oil from farmed salmon never should be allowed in organics.

The presence of other contaminants, such as DDT, mercury and dioxins in fish oils, largely come from farmed fish inputs and would erode consumer trust in the organic label. Fish are known to bioconcentrate toxic substances.

Several studies have examined contaminants in fish oil supplements and have found wide variation in levels, including products labeled “purified.” For instance, a 2011 test of 15 top-selling fish oil supplements by “Consumer Reports” found four fish oil supplements contained traces of PCBs.

Governmental fish oil quality standards do not exist in the United States.

NOSB must consider whether organic consumers are adequately protected from contaminants in fish oil by the current listing.

NOSB also must consider ecological balance and biodiversity when allowing fish oil from wild fish. These are fundamental considerations that organic consumers will expect as NOP moves toward establishing a framework for organic aquaculture.

Gellan gum, carrageenan, and proper reading of Sec. 205.600

PCC Natural Markets believes the NOP has misread §205.600 part (b) (4) “Evaluation criteria for allowed and prohibited substances, methods, and ingredients,” thereby creating a loophole to allow synthetic texturizers, such as carrageenan and gellan gum – contrary to OFPA’s intent.

§205.600 (b) (4) says, “(4) The substance’s primary use is not as a preservative or to recreate or improve flavors, colors, textures, or nutritive value lost during processing, except where the replacement of nutrients is required by law;”

Sentence diagramming reveals NOP’s error. As a literature major (Yale ’75), I deconstruct the sentence and see the phrase, “lost during processing” is a modifier ONLY to “nutritive value” – not flavors, colors or textures.

Breaking 205.600 down another way: “The substance’s primary use is not

  1. as a preservative
  2. or to recreate or improve flavors, colors, textures
  3. or nutritive value lost during processing, except where the replacement of nutrients is required by law

“Lost in processing” modifies only nutritive value. Look at it again, broken down grammatically by color:

“The substance’s primary use is not as a preservative or to recreate or improve flavors, colors, textures, or nutritive value lost during processing , except where the replacement of nutrients is required by law;”

The verbs —”to recreate or improve” — apply to all the noun objects that follow: flavors, colors, textures as well as nutritive value lost during processing.

They are the verbs ruling all objects that follow it. And that’s where I think NOP’s confusion lies.

Here’s the crux of it: Just because the terms in a complex series are the objects of a common verb(s) does not mean all the terms in the series share a modifying clause attached only to the last in the series. That’s the important part to recognize.

“Lost in processing” is not a modifier of flavors, colors, textures. It modifies ONLY the last term of the series, which is nutritive value. There’s no other proper way to read this.

I consulted with two Yale colleagues who may be considered grammar experts: the Neikirk Distinguished Professor of English at UCLA, Dr. Robert Watson, and UCLA science writing professor, Dr. Dana Cairns Watson (Electrical Engineering & Writing Programs).

After struggling with some ambiguity in the phrasing initially, we all, ultimately, came to the same conclusion.

Dr. Dana Cairns Watson noted our dissection is clinched by the last dependent clause, “except where the replacement of nutrients is required by law,” which clearly modifies only nutritive value. This means everything after the word “textures” modifies only “nutritive value lost during processing, except where the replacement of nutrients is required by law” — not flavors, colors or textures.

A proper reading of §205.600 (b) (4) would not allow synthetic additives whose primary purpose is to recreate or improve texture.

We maintain, therefore, that gellan gum and carrageenan are illegally on the National List. They should be prohibited in certified organic foods because their primary use is to recreate or improve texture, which is prohibited by §205.600 (b) (4).

We urge NOSB to recognize the proper reading of §205.600 (b) (4) as it considers materials whose primary purpose is to recreate or improve textures of organic foods.

6. Comments to the Livestock Committee

Animal welfare

Despite some progress in recent years, organic is losing ground in consumers’ eyes for animal welfare. The organic guarantee for organic livestock to have “outdoor access” is insufficient, and has fallen behind what customers expect and want for the living conditions of animals.

PCC Natural Markets has had to go beyond organic to provide more of what our customers tell us they want.

Our customer base (~133,000 customers/week) increasingly in recent years has asked for pastured eggs and grass-fed dairy and meat. They understand laying hens naturally forage outdoors in vegetated fields, and they understand ruminants are designed by nature to eat a grass diet without hot grain rations or other unnatural feed.

In turn, our buyers have sought out truly pastured eggs – organic or not. Our buyers tell us that, given a choice, organic egg shoppers have tended to shift to pastured eggs – organic or not. Consumer concern for a laying hen’s living conditions and diet, and the reported boost in egg nutrition from ample time outdoors on pasture, is causing the organic sector to lose sales.

As a retailer, we’ve also chosen also to identify grass-fed milk and meat – organic or not – even though organic standards don’t distinguish between grass-fed and grain-finished. This is what the market is demanding.

Instead of setting “the gold standard” for animal welfare, NOSB and NOP have allowed the organic dairy and meat rules to lag behind consumer awareness and values.

We encourage NOSB to define “pasture” for laying hens and ruminants, and to establish criteria for labeling claims on whether livestock (e.g. ruminants) is grass-fed or grain-finished.

Antibiotics in poultry

Organic consumers assume that if they’re buying organic chicken, it never was treated with antibiotics. It would be a rude awakening for organic consumers to learn the regulations contain a loophole on this.

USDA allows routine, non-therapeutic injections of antibiotics to chicks still in the egg, and on the first day of life. This exception in the organic standards is for poultry only.

We understand from “Consumer Reports” that one of the most common antibiotics administered to day-old chicks is gentamicin, classified by the World Health Organization as “critically important” for human medicine. (Consumer Reports indicates it is the sole therapy or one of few alternatives to treat serious human disease.)

The use of gentamicin at low-dose, non-therapeutic levels to prevent disease is not congruent with what organic means. Organic consumers could view this as one more dirty secret about the organic program, akin to the use of antibiotics in organic apples and pears. It doesn’t take many “surprises” to diminish public trust.

We urge the NOSB to recommend measures that would prohibit antibiotics in all stages of an organic bird’s life, including in the egg and on the first day of life. This would bring the standards for poultry in line with standards for other organic livestock.

Thank you for the opportunity to comment.

Trudy Bialic
Director, Public Affairs
April 5, 2015

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