National Organic Standards Board

Commercial Availability (606) Task Force

Recommendation for Rule Change on Commercial Availability 

Adopted 13 yes, 0 no, 1 absent

April 29, 2004

Introduction

The final recommendation below is a work product of a task force of the National 

Organic Standards Board, which is an advisory board to the USDA’s National 

Organic Program. The language does not represent new regulation or guidance 

from the USDA.

The National Organic Program Final Rule contains a provision allowing for use of 

non-organic agricultural ingredients in processed food products labeled as 

“organic”, subject to the provisions of 205.201(a)(2) and 205.301(b) and (f). At 

the time of publication of the Final Rule, AMS requested public comment on 

implementation of this provision. At this time, the NOSB has formed a task force 

to provide input to the NOP in order to facilitate development of the necessary 

guidance for implementation of the “commercial availability” provision.

The USDA National Organic Program and the National Organic Standards 

Board’s 606 Task Force solicited voluntary information from accredited certifying 

agents (ACAs) on the procedures used to determine if agricultural ingredients 

used in processed food products are commercially available in an organic form. 

We also requested information on any agricultural ingredients that ACAs have 

determined are not commercially available in an organic form. 

The objective of the NOP and NOSB is to establish acceptable practices to be 

followed by all certification applicants, certified operators, and ACAs for 

consistent, transparent, and predictable determinations of commercial availability 

that provide regulatory certainty. 

This document provides background information and contains a 4-part 

recommendation, in which the Task Force recommends that 205.606 be 

amended; currently listed and recommended items be reviewed; a new section 

205.607 be created; and that 205.606 be further amended to contain 

standardized procedures to be implemented by certification applicants, certified 

operators, and accredited certifying agents for the determination of commercial 

availability.

Note that the task force’s work applies only agricultural ingredients used in 

processed food. We anticipate a future effort to develop guidance on commercial 

availability as applied to seed and planting stock used in crop production, 

consistent with this recommendation.
Background 

§205.2 of the Final Rule defines “commercially available” as, “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.” 

§205.201(a)(2) states, “The producer or handler of a production or handling 

operation, except as exempt or excluded under §205.101, intending to sell, label, 

or represent agricultural products as “100 percent organic,” “organic,” or “made 

with organic (specified ingredients or food group(s))” must develop an organic 

production or handling system plan that is agreed to by the producer or handler 

and an accredited certifying agent. An organic system plan must meet the 

requirements set forth in this section for organic production or handling. An 

organic production or handling system plan must include:

(2) A list of each substance to be used as a production or handling input, 

indicating its composition, source, location(s) where it will be used, and 

documentation of commercial availability, as applicable;”

§205.301(b) states, in part, “Products sold, labeled, or represented as “organic.” 

A raw or processed agricultural product sold, labeled, or represented as “organic” 

must contain (by weight or fluid volume, excluding water and salt) not less than 

95 percent organically produced raw or processed agricultural products. Any 

remaining product ingredients must be organically produced, unless not 

commercially available in organic form,” 

§205.301(f)(6) states, “All products labeled as “100 percent organic” or “organic" 

and all ingredients identified as "organic" in the ingredient statement of any 

product must not:

(6) Be produced using nonorganic ingredients when organic ingredients are 

available;”

In the Preamble to the Final Rule, on page 80563, AMS stated, “While 

recognizing the potential benefits of applying the commercial availability standard 

to all agricultural ingredients in a processed product, we are concerned that 

enforcing this provision could impose an excessive burden on handlers. Although 

many commenters stated that some existing certifying agents apply a 

commercial availability standard, we do not have complete information on the 

criteria used by these certifying agents, and we are unsure whether a consensus 

exists on criteria for commercial availability within the organic community. 

Additionally, we are concerned that, unless the standard is clearly articulated and 

consistently interpreted and enforced, it will not be effective. Disagreement 

among certifying agents regarding when and under what circumstances an 

ingredient is commercially available would undermine our intent to create an 

equitable and enforceable standard.”
“AMS is soliciting additional comment and information on a number of issues 

concerning the development of standards for the commercial availability of 

organically produced agricultural commodities used in processed products 

labeled as "organic." On the basis of these comments and information and 

additional recommendations that the NOSB may develop, AMS will develop a 

commercial availability standard for use in implementing the final rule. AMS 

intends to develop the commercial availability standard and incorporate it within 

the final rule prior to the commencement of certification activities by accredited 

certifying agents. This approach will provide organic handlers and certifying 

agents the standard necessary to incorporate the consideration of commercial 

availability of ingredients in an organic system plan at the time that the USDA 

organic standard comes into use.” 

“Specifically, AMS requests comments and information addressing the following 

questions:

What factors, such as quantity, quality, consistency of supply, and expense of 

different sources of an ingredient, should be factored into the consideration of 

commercial availability? What relative importance should each of these factors 

possess, and are there circumstances under which the relative importance can 

change?

What activities and documentation are sufficient to demonstrate that a handler 

has taken appropriate and adequate measures to ascertain whether an 

ingredient is commercially available?

How can AMS ensure the greatest possible degree of consistency in the 

application of the commercial availability standard among multiple certifying 

agents?

Could potentially adverse effects of a commercial availability standard, such as 

uncertainty over the cost and availability of essential ingredients, impact or 

impede the development of markets for organically processed products?

What economic and administrative burdens are imposed by the commercial 

availability standards found in existing organic certification programs?

How would producers benefit from market incentives to increase use of organic 

ingredients that result from a commercial availability standard?

Would lack of a commercial availability standard provide a disincentive for 

handlers of products labeled "organic" to seek out additional organic minor 

ingredients? What impacts could this have on producers of minor ingredients?”

“AMS welcomes any new or unpublished research results or information that 

exists concerning a commercial availability standard. AMS specifically invites 

comment from establishments which currently operate using commercial 

availability or a comparable provision in the conduct of their business.”

In response to the AMS’ request for comments, comments were submitted by the 

following: ForesTrade; Horizon Organic Dairy; Organic Materials Review 

Institute; Organic Trade Association; Small Planet Foods; Quality Assurance 
International; Wood Prairie Farm; and the NOSB. Comments are reflected in 

recommendation # 2 below. 

All comments are posted at 

www.ams.usda.gov/nop/archive/CommercialAvailability.htm

§205.606 currently reads, “Nonorganically produced agricultural products allowed 

as ingredients in or on processed products labeled as “organic” or “made with 

organic (specified ingredients or food group(s)).” 

The following nonorganically produced agricultural products may be used 

as ingredients in or on processed products labeled as “organic” or “made with 

organic (specified ingredients or food group(s))” only in accordance with any 

restrictions specified in this section. 

Any nonorganically produced agricultural product may be used in 

accordance with the restrictions specified in this section and when the product is 

not commercially available in organic form. 

(a) Cornstarch (native). 

(b) Gums—water extracted only (arabic, guar, locust bean, carob bean). 

(c) Kelp—for use only as a thickener and dietary supplement. 

(d) Lecithin—unbleached. 

(e) Pectin (high-methoxy).”

In June, 2001, the NOSB recommended that the words “as ingredients” be 

deleted from 205.605 and 205.606. The rationale for deleting "as ingredients" 

from the title and text of 205.605 and 205.606 was a technical correction to make 

the language of 205.605 and 205.606 consistent with 205.105 (c) and (d), which 

do not mention the phrase "as ingredients". The intent was not to remove 

"ingredients" from inclusion or consideration. Rather, the intent was to clarify that 

the phrase "in or on" includes both ingredients and processing aids.

In May, 2002, the NOSB made a recommendation to amend Section 205.606 of 

the National List to change the text and re-assign or delete the listed items. The 

justification for this recommendation was that industry was starting to rely on 

section 205.606 as a list of agricultural ingredients that are not available in an 

organic form. The NOSB indicated that once an item is specifically listed on 

205.606, the industry no longer has an incentive to develop organic forms of the 

substance.

Recommendation # 1a

The 606 Task Force recommends replacement of the current section 205.606 

with a new section 205.606, entitled, “Nonorganically produced agricultural 

substances prohibited or restricted for use in or on processed products 

labeled as “organic” or “made with organic (specified ingredients or food 

group(s)).”
Any nonorganically produced agricultural product may be used in products 

labeled “organic” in accordance with restrictions specified in this section and 

when the product is not commercially available in organic form.

Any nonorganically produced agricultural product may be used in products 

labeled “made with organic (specified ingredients or food group(s))” in 

accordance with restrictions specified in this section.

Rationale - If the materials currently under 205.606 (those that include a 

restrictive annotation) were recommended to remain on the National List, then 

they would be better identified under a “restricted” or “annotated” listing on a 

“prohibited agricultural” category, because the items may not fit under 205.605, 

since it lists “nonagricultural” substances. 

Only prohibited and annotated agricultural ingredients would appear on the new 

section 205.606. Since they have been determined to be agricultural, all items on 

205.606 would still be subject to commercial availability requirements, as 

administered by operators and accredited certifying agents. All other agricultural 

ingredients used in processed products would not appear on the National List, as 

they would fall under commercial availability requirements.

Recommendation # 1b

The 606 Task Force recommends that the current materials located under 

205.606 be reviewed by the NOSB prior to deletion or movement to another 

section. In order to be consistent and transparent with the material review 

process, each substance currently located in 205.606 shall be reviewed for reclassification by the Handling Committee to determine if the substance is; 

a) nonagricultural and nonsynthetic, and therefore should be moved to 

205.605(a);

b) nonagricultural and synthetic, and therefore should be moved to 

205.605(b);

c) agricultural and prohibited or restricted, and therefore should be added to 

a new section 205.606 “Nonorganically produced agricultural substances 

prohibited or restricted for use in or on processed products labeled as 

“organic” or “made with organic (specified ingredients or food group(s)),” 

or

d) agricultural and allowed subject to commercial availability, and therefore 

should be removed from the National List.

The following materials currently located on 205.606 shall go through the 

material review process described above:

Cornstarch (native), Lecithin – unbleached, Pectin (high methoxy), Gums –

water extracted only (arabic, guar, locust bean, carob bean) and Kelp – for use 

as a thickener and dietary supplement.
The following materials previously recommended to be added to section 205.606 

by the NOSB shall also go through the review process described above: Gelatin 

and Shellac

Recommendation # 2

The NOSB 606 Task Force recommends that the definition and procedures 

contained below be used by certification applicants, certified operators, and 

accredited certifying agents to determine the commercial availability of 

agricultural ingredients used in processed food products labeled “organic”. 

Commercially available definition

The Final Rule defines “commercially available” as, “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.” 

Commercial availability determination procedures (to be added to Subpart 

E Certification)

In order to assure consistency, the Task Force recommends that Subpart E 

Certification be amended to contain the following commercial availability 

determination procedures:

A. For a non-organic agricultural ingredient used in a processed product labeled 

as “organic” to be determined as not commercially available, the applicant or 

certified operator must submit a written report to the certifying agent as part of 

the organic system plan or organic system plan update that provides:

1. Description of the ingredient and the required technical specifications of 

the ingredient (including form and quality);

2. Estimate of the quantity of the ingredient needed within a specified time 

period, if this is a factor in the requested allowance of a non-organic 

ingredient. (Quantity, quality, form, and function may be considered for 

individual product requirements and not for total business requirements for 

all potential product lines.); and

3. Explanation of how the ingredient is used to fulfill an essential function.

4. During the certification evaluation, the applicant or certified operator must 

provide information concerning known sources of the ingredient, and 

organic status thereof; and

5. Provide written evidence of efforts to locate sources of organic ingredients 

that meet form, quality and quantity requirements, including the dates 

when potential suppliers of applicable organic ingredients were contacted. 

Written evidence may include letters, faxes, email correspondence, 

ingredient evaluation reports, or phone logs of discussions with potential 
suppliers. A minimum of three potential suppliers shall have been 

contacted during the previous 12 months.

B. The accredited certifying agent, in granting a determination that an agricultural 

ingredient used in a processed food product is not commercially available in an 

organic form, shall: 

1. Evaluate the applicant or certified operator’s claim that no organic 

substitutes are commercially available in the form, quality, or quantity 

needed by the operation to fulfill the required function;

2. Validate that the applicant or operator has documented that the ingredient 

is not commercially available in an organic form by reviewing the best 

available information listing known sources of organic ingredients;

3. Notify the certification applicant or certified operator of sources of 

information which list available organic ingredients, if the certifying agents 

finds that such ingredients exist; 

4. Maintain and annually submit to the National Organic Program an up-todate list of ingredients that have been granted allowances in non-organic 

form. (The list shall maintain the confidentiality of ingredient suppliers and 

parties granted allowances. The reporting requirement shall be 

implemented through the accreditation process by providing ACAs ample 

notification and time to adapt data management systems.);

5. Require certified operators to update commercial availability information in 

each organic system plan update;

6. Acknowledge all complaints concerning allowances granted and provide

rationale for determinations. If the investigation of a complaint provides 

significant new information, then the certifying agent must revisit the 

allowance; and

7. Require that products without sufficient documentation not be labeled 

“organic”. Such products may be labeled “made with organic ingredients” if 

they meet all applicable labeling and product content requirements for that 

category.

Postscript

The 606 Task Force acknowledges that this recommendation does not apply to 

organic seed determinations. The task force recommends that the Crops 

Committee and/or Policy Development Committee develop a draft organic seed 

recommendation which is consistent with this recommendation.

 

Conclusion

Based on comments received, the NOSB recommends that 205.606 be 

amended; currently listed and recommended items be reviewed; and that 

Subpart E Certification be amended to contain standardized procedures to be 

implemented by certification applicants, certified operators, and accredited 
certifying agents for the determination of commercial availability. A comparable 

and consistent recommendation is needed to address organic seed issues.