FORMAL RECOMMENDATION BY THE

NATIONAL ORGANIC STANDARDS BOARD (NOSB) 

TO THE NATIONAL ORGANIC PROGRAM (NOP) 

Date: _August 17, 2005________

Subject: __The Listing of Certifying Agent’s name on Packaged Products________ 

Chair: ____Jim Riddle______________________________________ 

 (sign)

Recommendation

The NOSB hereby recommends to the NOP the following: 

Rulemaking Action: ___X_____ 

Guidance Statement: ___X____ 

Other: ___X_____ 

Statement of the Recommendation (including Recount of Vote):

The NOSB recommends that the term “otherwise manufacturing” be understood to 

include: creation of labels, formulation of products, and procuring ingredients for 

products. 

The NOSB recommends the following responses to questions submitted by the NOP: 

Response to Question 1 

1. Based on the scenario presented and the requirements contained in the NOP 

regulations, which ACA is “required” to be identified on the label of the 

packaged product, “Certifier X” or “Certifier Y?” Please provide your 

rationale. 

The scenario states that the retailer “has been voluntarily certified by an USDA 

accredited certifying agent”. Yet the example further states that the retailer provides the 

labels used to label the packaged products. 

If the retailer is participating in the creation of the product in such a way as to be 

considered “otherwise manufacturing”, then the retailer is no longer within the exemption 

offered in 205.101(a)(2) of the regulation. The retailer is thus required to participate in 

certification. Therefore, it would be required that Certifier X be listed on the final 

packaging. 

If, the retailer in this scenario is exempt retailer that is voluntarily certified, they may 

volunteer to be the “final handler”. If so, Certifier X would be identified on the label as 

they are now responsible for the voluntary certification of the retailer. If the retailer does 

not volunteer for this role, then Certifier Y would be represented as they are responsible 

for the manufacturer who remains “final handler”. 

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Response to Question 2 

2. Can a final retail establishment that does not process agricultural products be 

considered a handler under the definition of “handler” contained in the NOP 

regulations? Please provide your rationale. 

Yes, under the provisions stated in the preamble of the regulation that allow for operation 

of voluntarily participate in certification, operations that are not mandated for 

certification under the regulation may take on this responsibility and participate in the 

rights associated with that certification. 

Response to Question 3 

3. Can a final retail establishment that does not process agricultural products be 

certified as an organic handler under the NOP regulations? 

Yes, again the preamble allows for voluntary participation of entities that are not required 

to become certified. Based on the fact that retailer function in a capacity “to sell” organic 

products, these certifications are considered that of a handler. 

Further, the NOSB endorses the adoption of the previous NOSB recommendation for rule 

change (Addendum A) adopted by the NOSB on October 7, 2001. This recommendation 

further clarifies the role of the final handler and certifier indicated on the final product 

label. 

Board vote – August 16, 2005: 

8 Yes, 3 No, 2 Abstain, 1 Absent 

Rationale Supporting Recommendation (including consistency with OFPA and NOP):

Rationale provided in text of recommendation below.

Response by the NOP:

Updated 2/25/05 

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NOSB Handling/CAC Committees Recommendation 

Listing of Certifying Agent’s name on Packaged Product 

Adopted by the National Organic Standards Board 

August 16, 2005 

Introduction

The USDA National Organic Program (NOP) has requested the NOSB to provide 

recommended guidance concerning an issue related to the listing of a Certifying Agent’s 

name on a packaged product. The NOP can review and distribute this recommendation to 

accredited certifying agents and post on the NOP website. 

Background 

The following scenario has been presented to the National Organic Program (NOP) for

clarification: 

A retail establishment has been voluntarily certified by an USDA accredited certifying 

agent (ACA), “Certifier X,” to sell organic products. The certified retail establishment 

contracts with a certified organic handling operation, certified by “Certifier Y,” to 

manufacture organic products for distribution by the retail establishment. The organic 

products that are produced by the contracted handling operation are also packaged and 

labeled by the handling operation. However, the labels used to label the packaged 

products are supplied to the contracted handling operation by the certified retail 

establishment. The certified retail establishment does not perform any processing 

function for this product during its manufacture. 

In order to address the scenario, the Certification Accreditation and Compliance 

Committee determined that there are fundamental concepts that must be defined. First, 

the rule specifically gives exemption from the requirements of certification for “retail” 

operations. However, retail operations are not defined by the regulation. Secondly, the 

NOP provides for “Voluntarily Certified”, but it must be clarified as to the requirements 

and rights of entities that are granted this certification. 

Further, the committee endorses the adoption of the previous NOSB recommendation for 

rule change (Addendum A) adopted by the NOSB on October 7, 2001. This 

recommendation further clarifies the role of the final handler and certifier indicated on

the final product label. 

Defining Retail:

Section 205.101(a)(2) of the rule states: 

A handling operation that is a retail food establishment or portion of a retail food 

establishment that handles organically produced agricultural products but does 

not process them is exempt from the requirements in this part. 

Section 205.2 defines processing as: 

Cooking, baking, curing, heating, drying, mixing, grinding, churning, separating, 

extracting, slaughtering, cutting, fermenting, distilling, eviscerating, preserving, 

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dehydrating, freezing, chilling, or otherwise manufacturing and includes the 

packaging, canning, jarring, or otherwise enclosing food in a container. 

The committee recommends the following clarification regarding the term “otherwise

manufacturing”: the creation of labels, formulation of products, procuring ingredients for 

products, etc. The retailer in the example provided becomes a retail operation which 

processes and therefore is required to be certified. The retailer becomes liable for 

product claims and process or systems used to create said product and assume full 

liability and responsibility. 

Voluntary Certification:

The 2 December 2000, Federal Register (page 80552) states: 

This regulation establishes several categories of exempt or excluded operations. 

An exempt or excluded operation does not need to be certified. However, 

operations that qualify as exempt or excluded operation can voluntarily choose to 

be certified. A production or handling operation that is exempt or excluded from

obtaining certification still must meet other regulation requirements contained in 

this rule as explained below. 

As is indicated, voluntary certification is offered to entity that opt to participate in 

certification in a situation in which the regulation does not mandate certification. Since 

retailers are exempt under 205.101 (a)(2), participation in the NOP certification program

is considered voluntary. However, as a participant, applicants for voluntary certification 

are responsible for compliance with all requirements of the program. 205.400 Likewise, 

ACAs that provide voluntary certification are liable for their decision to grant voluntary 

certification. 205.404 

The regulation requires that products making an organic claim (100% organic, organic, or 

made with organic ****) disclose the name of the “final handler” on the ingredient panel. 

205.303(b)(2), 205.304(b)(2). The regulation defines “handler” to mean: 

Any person engaged in the business of handling agricultural products, including 

producers who handle crops or livestock of their own production, except such 

term shall not include final retailers of agricultural products that do not process 

agricultural products. 

The regulation further defines “Handle” to be: 

To sell, process, or package agricultural product, except such term shall not 

include the sale, transportation, or delivery of crops livestock by the producers 

thereof to a handler. 

Clearly, the regulation has provided leniency for retailers regarding the obligation for

certification. However, the NOP has also given entities that are not required to pursue 

certification the ability to volunteer for certification. 

Since the retailer does “handle” organic products by their effort “to sell”, a retailer may 

apply for voluntary certification as an organic handler. Since this retailer takes on the 

responsibility of the regulation and is certified by an ACA to those requirements, and 

since the retailer is a handler, it is then reasonable to state that the retailer may voluntarily 

become the final handler. 

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Specific Questions 

Sections 205.303 (b) (2) and 205.304 (b) (2) of the NOP regulations state that “On the 

information panel, below the information identifying the handler or distributor of the 

product and preceded by the statement, "Certified organic by...," or similar phrase, 

identify the name of the certifying agent that certified the handler of the finished 

product: Except, That, the business address, Internet address, or telephone number of the 

certifying agent may be included in such label.” 

1. Based on the scenario presented and the requirements contained in the NOP 

regulations, which ACA is “required” to be identified on the label of the packaged 

product, “Certifier X” or “Certifier Y?” Please provide your rationale. 

2. Can a final retail establishment that does not process agricultural products be 

considered a handler under the definition of “handler” contained in the NOP 

regulations? Please provide your rationale. 

3. Can a final retail establishment that does not process agricultural products be 

certified as an organic handler under the NOP regulations?

Recommendations 

The Certification, Accreditation and Compliance Committee recommends that the term 

“otherwise manufacturing” be understood to include: creation of labels, formulation of 

products, and procuring ingredients for products. 

The CAC Committee recommends the following responses to questions submitted by the 

NOP: 

Response to Question 1 

4. Based on the scenario presented and the requirements contained in the NOP 

regulations, which ACA is “required” to be identified on the label of the 

packaged product, “Certifier X” or “Certifier Y?” Please provide your 

rationale. 

The scenario states that the retailer “has been voluntarily certified by an USDA 

accredited certifying agent”. Yet the example further states that the retailer provides the 

labels used to label the packaged products. 

If the retailer is participating in the creation of the product in such a way as to be 

considered “otherwise manufacturing”, then the retailer is no longer within the exemption 

offered in 205.101(a)(2) of the regulation. The retailer is thus required to participate in 

certification. Therefore, it would be required that Certifier X be listed on the final 

packaging. 

If, the retailer in this scenario is exempt retailer that is voluntarily certified, they may 

volunteer to be the “final handler”. If so, Certifier X would be identified on the label as 

they are now responsible for the voluntary certification of the retailer. If the retailer does 

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not volunteer for this role, then Certifier Y would be represented as they are responsible 

for the manufacturer who remains “final handler”. 

Response to Question 2 

5. Can a final retail establishment that does not process agricultural products be 

considered a handler under the definition of “handler” contained in the NOP 

regulations? Please provide your rationale. 

Yes, under the provisions stated in the preamble of the regulation that allow for operation 

of voluntarily participate in certification, operations that are not mandated for 

certification under the regulation may take on this responsibility and participate in the 

rights associated with that certification. 

Response to Question 3 

6. Can a final retail establishment that does not process agricultural products be 

certified as an organic handler under the NOP regulations? 

Yes, again the preamble allows for voluntary participation of entities that are not required 

to become certified. Based on the fact that retailer function in a capacity “to sell” organic 

products, these certifications are considered that of a handler. 

Committee vote: 

Yes – 4; No – 0; Abstention – 0; Absent – 1 

Board vote: 

Yes – 8; No – 3; Abstention – 2; Absent – 1 

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Addendum A - Proposed Change Recommended to the 

NOSB by the Accreditation Committee 

July 10, 2001 

Adopted by the NOSB, October 7, 2001 

Note: The following recommendation received one public comment, which supported it.

Consequently, it is being submitted unchanged. 

Subpart D – Labels, Labeling, and Market Information 

The word “certified” should be inserted in the following three sections of Subpart D: 

1. Section 205.303(b): Agricultural products in packages described in Sec. 205.301(a) 

and (b) must: ... (2) On the information panel, below the information identifying the 

certified handler or distributor of the product and preceded by the statement, “Certified 

organic by ***,”...; 

2. Section 205.304(b): Agricultural products in packages described in Sec. 205.301(c) 

must: ... (2) On the information panel, below the information identifying the certified

handler or distributor of the product and preceded by the statement, “Certified organic by 

***,”...; and, 

3. Section 205.306(b)(1): Livestock feed products described in Section 205.301(e)(1) 

and (e)(2) must: (1) On the information panel, below the information identifying the 

certified handler or distributor of the product and preceded by the statement, “Certified 

organic by ***,” ... 

Rationale: 

Under the rule as written, companies that commission the production and handling of 

organic products do not have to be certified if they do not physically “handle” products. 

The processing operations that manufacture the products must be certified, however. For 

the sake of this discussion, companies, such as private label operations, who commission 

such products will be referred to as “commission merchants”. Handlers who manufacture 

products for such operations will be called “co-packers”. 

As stated, co-packers must be certified, but commission merchants are excluded from 

certification under 205.101(b)(1), since they do not physically “handle” or package the 

products. This overlooks the fact that many commission merchants control significant 

information needed to assess the audit trails of co-packers. In many instances, 

commission merchants order ingredients, obtain organic certificates, retain invoices and 

sales records, and control the wording of product labels. 

Under the current rule, the name of the certifying agent must appear on the label. There is 

nothing in the rule, however, that requires that the name of the final handler appear on the 

label along with the name of the certifying agent. If the final handler is a co-packer who 

manufactures for a private brand or retailer, the name of the private brand or retailer 

(commission merchant) will appear on the label along with the name of the certifying

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agent, even though the private label company or retailer is not certified. There is no 

connection to the certified handler who manufactured the product. The product is not 

traceable back to the certified operation that manufactured it. The audit trail is not 

complete. 

The proposed change would require that name of the certified handler appear on the 

product label. The effect of this change would be that either the name of the certified 

manufacturer (co-packer) would appear on the label, or else the private brand company 

(commission merchant) would choose to get certified. Either way, the audit trail would be 

intact. A product could be tracked back to its point of manufacture. Parties identified on 

product labels would be part of the certification loop. In addition, the name of the 

certifying agent would be used in conjunction with the name of a company that it 

certified. 

The proposed change is consistent with the intent of the OFPA, which states in 

2106(a)(1)(B), “No person may affix a label to, or provide other market information 

concerning, an agricultural product if such label or information implies, directly or 

indirectly, that such product is produced and handled using organic methods, except in 

accordance with this title.” This statement presumes that operations that label products as 

organic must comply with the NOP, including being certified by an accredited certifying 

agent. 

The December 21, 2000, Federal Register, on page 80581, 3rd column, in the Labeling 

discussion under Exempt or Excluded Operations, states: 

"Any such operation that is exempt or excluded from certification or which chooses not 

to be certified may not label its organically produced products in a way which indicates 

that the operation has been certified..." 

This same intent should cover private label commission merchants. If a non-certified 

commission merchant places only its own name on a product, along with the name of the 

certifying agent (and optionally the USDA Organic Seal), the product is certainly labeled 

to imply that "the operation" (i.e., the commission merchant) has been certified. 

The name of the certified operation should appear on final consumer product labels 

because: 

• This was the intent of the OFPA, requiring certification and full disclosure; 

• This labeling requirement was assumed, but not discussed, during the rule-making 

process; 

• All other regulatory systems require that the registrant or certified operation appear 

on the product label, including FDA drug, EPA pesticide, and State feed and fertilizer 

programs; and 

• This will help solve problems that are now appearing in organic labeling and in audit 

trails. 

The proposed change will help assure a successful National Organic Program in several 

ways: 

• Consumer confidence will be protected because there will be clear certification;

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• Most of the current tracking problems will be avoided because the audit trail will be 

clear; 

• Regarding commissioned products, the label will either identify the certified 

operation that packaged the product, or the private labeler can choose to be certified; 

• Exemptions and exclusions from certification will remain in place and these 

operations will not be required to be certified; and 

• Enforcement agents and the public will be able to verify the integrity of the product 

through either the certified operation or the certifying agent and perform their 

functions more easily. 

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