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 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 (copacker) 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;

 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.