FORMAL RECOMMENDATION BY THE

NATIONAL ORGANIC STANDARDS BOARD (NOSB) 

TO THE NATIONAL ORGANIC PROGRAM (NOP) 

Date: _________4/21/2007______

Subject: Fructooligosaccharide for addition to National List under, §205.606 

Chair: Andrea Caroe 

 

Recommendation

The NOSB hereby recommends to the NOP the following: 

Rulemaking Action: _XXX___ 

Guidance Statement: ________ 

Other: ________ 

Statement of the Recommendation (including Recount of Vote):

The Board recommends adding Fructooligosaccharide under §205.606-nonorganically produced 

agricultural products 

NOSB Vote: Motion: Julie Weisman Second: Steve DeMuri

Board vote: Yes -10 No-3 Abstain- 0 Absent -2 Recuse- 0 

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

The National List of Allowed and Prohibited Substances §205.606 

Response by the NOP:
National Organic Standards Board 

Final Recommendation for 

Date: April 21, 2007 

I. List: (where in FR rule example 205.606) 

National Organic Program Subpart G: The National List of Allowed and Prohibited 

Substances. §205.606 Nonorganically produced agricultural products allowed as 

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

(specified ingredients or food groups(s)).” 

II. Committee Summary: 

 On June 9, 2005, a court final order and judgment arising from Harvey v. Johanns, stated that 

“the Secretary must issue a declaratory judgment that 7 CFR § 205.606 shall not be interpreted to 

create a blanket exemption to the National List requirements specified in 7. U.S.C. 6517.” These 

“requirements permit the use of nonorganic agricultural products in or on processed organic 

products when their organic form is not commercially available.” 

Further, “consistent with OFPA, 7 CFR §205.606 shall be interpreted to permit the use of a 

nonorganically produced agricultural product that has been listed in § 205.606 pursuant to 

National List procedures and when a certifying agent has determined that the organic form of the 

agricultural product is not commercially available.” 

Effort was made through many channels to elicit from manufacturers, petitions for any nonorganically produced agricultural materials that had been using on products labeled and sold as 

“organic.” 

 

In addition, pursuant to the judgment in Harvey v.Johanns, the NOSB was instructed to develop 

criteria for determining commercial availability, an essential tool in evaluating whether or not 

petitioned materials could be listed on § 205.606. These criteria were finalized in the NOSB 

“Recommendation for the Establishment of Commercial Availability Criteria National List § 

205.606” of October 19, 2006. That recommendation allows for pro-active listing on 205.606 of 

materials which may currently be available in an organic form, but the supply of which has a 

history of fragility due to factors such as limited growing regions, weather or trade-related issues. 

Furthermore, the recommendation reiterates the role of the Accredited Certifying Agent (ACA) in 

making the ultimate decision as to whether a 606-listed material may be used, on a case by case 

basis. 

Petitions received for non-organic agricultural materials contained widely varying amounts 

information with which to assess the current availability or fragility of current supply of organic 

forms of the petitioned material. 

The petitioner for Fructooligosaccharide made the case that there is currently no organic form of 

this product being produced. 

 
The Handling Committee noted that agricultural substances are only required to be evaluated 

using the criteria specified in the Act (7 U.S.C. 6517 and 6518). 

6517(c)(1)(a) 

i) would not be harmful to human health or the environment; 

(ii) is necessary to the production or handling of the agricultural product because of 

unavailability of wholly natural substitute products; and 

(iii) is consistent with organic farming and handling; 

Agricultural substances do not need to be evaluated against section 205.600 (b). (i.e. 

essentialness) . This additional criteria is only required for any synthetic substance used as a 

processing aid or adjuvant. 

The Handling Committee also considered what constitutes “essential” for organic handling of a 

finished retail product and how that may be different from that of a material used in crop or 

livestock production. It was agreed that certain agricultural materials might be essential for 

creating a product that meets consumer expectations of taste or texture or nutritional value. A 

number of commenters cited Fructooligosaccharide as an essential ingredient in the organic 

consumer products they make for this reason. There were no public comments specifically 

opposing the listing of Fructooligosaccharide on § 205.606. 

The Handling Committee carefully considered the difference between the availability of a raw 

agricultural product as organic, and the availability of certified organic handlers to process that 

raw material into one useable for handling purposes. The petitioner for Fructooligosaccharide 

acknowledged that while it is like in the future for the manufacturer to make this material available 

in an organic form, this is not likely to happen in the next three years. 

 

III. Board Recommendation 

Fructooligosaccharide for inclusion on §205.606 of the National List

Moved: Julie Weisman Second: Steve DeMuri 

Board vote: Yes-10 No- 3 Absent- 2 Abstain-0 Recuse-0