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Canadian Organic Growers’ response to the proposed Organic Products Act

November 15, 2006

We believe that a federal regulation is a necessary first, though far from last, step for building a viable organic sector in Canada. We see organic agriculture not only as an essential tool to help move Canadian agriculture into the 21st century, but we believe that it can help our

government meet its environmental objectives and give Canadians the traceable and accountable food system they want. Globally, the most successful organic regimes have received a considerable amount of government support beyond regulatory controls. These

initiatives are designed to ensure adequate domestic production and reliable markets. We hope the Canadian government will demonstrate similar leadership. An important first step will be to ensure that adequate resources are allocated to not only implement the regulation, but to help raise public awareness of the new organic label.

I.                 Implementation Schedule

COG recommends the Organic Products Regulation be amended and passed into law as quickly as possible, not only to meet the timetable of our international trading partners, but to begin the work of branding the new organic label for the purposes of building a domestic organic market. We have been impressed with the consultation process leading up to the development of the regulation. However, we have not yet received sufficient clarity from the government of Canada about how the regulation will be phased in, other than that the process will take several years.

COG Recommendation

We  would like to see a formal and transparent implementation process set out that gives accreditation and certification bodies, producers, processors, retailers and importers and exporters enough time to develop the processes required to comply with the law without unduly delaying implementation of important components of the organic regime such as the adoption of the organic label. We also urge that the implementation schedule to phase in the various program components is developed in consultation with the organic sector.

We further recommend that the date of full enactment of the Organic Products Regulation be indicated within the regulation.

II.         Organic Policies and Procedures (OPP) Manual

COG is aware of the time demands on Organic Task Force staff, particularly over the past summer as a result of pressing external deadlines. However, we believe that insufficient time has been allotted for the development of the Organic Policies and Procedures (OPP) manual and that the consultation process must be extended and formalized. While the current 75 day public review process provides sufficient time to allow us to review the regulation, it is not adequate for a detailed analysis of both the regulation and the OPP manual.

We are also concerned about the ambiguous relationship between the Organic Products Regulation and the OPP manual. The manual is not mentioned or referenced within the regulation, making us question its legal status and where it derives its legal authority. The government has indicated that the OPP manual will play a key role in interpreting the regulation. Although an interpretation manual is clearly needed, we are concerned that the current manual moves far beyond interpretation and creates policy where none existed before. The manual may also provide information that contradicts the regulation and standards.

COG Recommendation

As part of the implementation process described above, COG recommends the government adopt a formal consultation period with the organic sector which includes the organic sector. The OPP manual is important for the governance of the organic regime because it contains considerable logistical detail which is not in the standards or regulation. We believe that an adequate consultation process with the sector could be completed in 6 months.  The process need not be as comprehensive as that for the regulation, but must include some face-to-face meetings with the major components of the organic value chain.

COG also recommends that a formal consultation process be put in place for ongoing updates to the OPP manual after its initial development. Up front and on-going consultation with the organic sector will be necessary to achieve the buy-in from the organic sector that the government will need to implement the new organic regime.

From a strategic point of view, it is important that development of the OPP manual be separated from the public comment period for the regulation. The release of the standards, regulation and manual at the same time has diverted attention from the Organic Products Regulations and many of us within the organic sector have become increasingly confused about the intentions of the Canadian government. We can sort this out by dealing with regulatory change now while putting off consultation on the OPP manual until 2007. It would be folly to risk delay in passage of the regulation to deal with the complex issues raised by the OPP manual now.

For this reason, COG has chosen to focus its comments on the regulation at this stage.

III.        Organic Products Regulation- Comments and Proposed Amendments

COG is pleased to see that many of the elements that our members have advocated for are in the proposed regulation. Our comments below relate only to those sections of the proposed regulation that have evoked significant responses from our members.

Organic Products [section 1]

"organic product" means an agricultural product that has been certified as organic in accordance with these Regulations.

2. (1) Only organic products as defined in section 1 may use the logo set out in the schedule or the designations "Canada Organic" and "Biologique Canada".

(2) Only organic products as defined in section 1 shall be marketed in interprovincial or international trade.

a) focus on end product conflicts with standard’s focus on process

The phrase organic product inappropriately places the emphasis of the regulation on the final organic product. The Canadian organic standard, CAN/CGSB-32.310-2006, is a process standard that governs the processes used to produce and process organic products.

COG Recommendation

In order to harmonize the regulation with the intent of CAN/CGSB-32.310-2006 COG recommends the phrase organic product be replaced with organically produced product wherever it is used in the regulation.

b) interpretation of ‘organic product’ in regulation broader than the scope of the standard

The various policy documents (regulation, standard and the Organic Policies and Procedures manual) contain divergent information with respect to the scope of the regulation. The regulation states (section 2.1) that “Only organic products defined in section 1 shall be marketed in interprovincial or international trade.” An organic product is defined as “an agricultural product that has been certified as organic in accordance with these Regulations.” We interpret this to mean that the regulation could apply to products such as cosmetic or health care products, aquaculture and to some lawn care products. However, the standard (CAN/CGSB-32.310-2006) defines the scope more narrowly. Section 1.2 states: “This standard applies to the following products that carry or are intended to carry descriptive labelling referencing organic production methods:

a. unprocessed plants and plant products, livestock and livestock products, to the extent that the principles of production and specific verification rules for them are described in the standard

b. processed agricultural crop and livestock products intended for human consumption derived from the items mentioned in par. 1.2 a “

The OPP manual states that the organic regime will apply to food, feed and seed (section 2.0, pg. 3), similar to the more narrow defined scope of the standard.

We have been told that the scope of the regulation is deliberately broader so that it would have the flexibility to cover new standards associated with other non-food products. Until such time as there are standards to deal with these products, the regime will regulate only those products covered by section 1.2 of CAN/CGSB-32.310-2006.

COG Recommendation

Although we do not recommend an amendment of the regulation to narrow its scope in accordance with the standard, we would appreciate some clarity on this issue. We recommend that CFIA produce a list of categories of agricultural products that could eventually be covered if appropriate standards are developed. These could be broad and include (or exclude)

landscaping products, personal health care products and aquaculture. We also require some clarity on the process for developing new standards, how they would be integrated with the existing standard, and the process for updating them. We assume that the current standard will be updated through the process already developed through the Canadian General Standards Board and its technical committee on organic agriculture. If more standards are developed under a single regulation, the current technical committee would not have the expertise or the time to oversee a potential multitude of diverse standards. COG recommends that the government outline a process including separate technical committees to deal with any new standards that may evolve.

c) protection against misleading claims

It appears that section 2(1) of the regulation is structured to control how the logo (schedule, sections 2 and 3) is used. If this interpretation is correct, there is nothing in the regulation that would prevent operators from making false claims that a product is ‘organic’, ‘biologique’ or even ‘Canada Organic’ provided that they do not use the logo. This does not go far enough to protect consumers against misleading claims, nor will it meet the goals for the regulation laid out in the Regulatory Impact Statement which include: “protection to consumers against deceptive and misleading labelling practices” and “facilitate(ing) international market access”. We fear that the current regulation will not achieve the latter goal because it does not contain provision to prevent use of the word ‘organic’ and its homologues and thus does not harmonize with the rules of our trading partners. For instance, The European regulation states:

“For the purposes of this Regulation a product shall be regarded as bearing indications referring to the organic production method where, in the labelling, advertising material or commercial documents, such a product, its ingredients or feed materials are described in terms suggesting to the purchaser that the product, its ingredients or feed materials have been obtained in accordance with the rules of production laid down in Article 6. In particular, the following terms or their usual derivatives (such as bio, eco etc.) or diminutives, alone or combined, shall be regarded as indications referring to the organic production method throughout the Community and in any Community language, unless they are not applied to agricultural products in foodstuffs or feeding stuffs or clearly have no connection with this method of production”. [the regulation goes on to list the words generally used to describe organic production methods in the European Union](EEC 2092/91, article 2). The NOP rule contains similar provisions: Any agricultural product that is sold, labeled, or represented as "100 percent organic," "organic," or "made with organic (specified ingredients or food group(s))" must be: (a) Produced in accordance with the requirements specified in § 205.101 or §§ 205.202 through 205.207 or §§ 205.236 through 205.239 and all other applicable requirements of part 205; and (b) Handled in accordance with the requirements specified in § 205.101 or §§ 205.270 through 205.272 and all other applicable requirements of this part 205 (NOP rule, § 205.102)

COG Recommendation

COG recommends the regulation be amended to adopt wording similar to that of our two major trading partners to ensure the regulation governs not only the use of the label, but also the organic claims used on products or in advertising materials for products represented to be

100% organic. At a minimum, the regulation should govern how the words ‘organic’ and ‘biologique’ are used. If the Canadian Agricultural Products Act cannot accommodate this, consideration should be given to amending that Act to rectify this significant failing.

d) Interprovincial and International Trade

Our interpretation of section 2.2 is that the regulation applies only to organic products carrying the ‘Canada Organic’ logo that are marketed interprovincially or internationally. This will create a problem for the organic industry if farmers and processors are allowed to make an organic claim for non organic products marketed within a province. This will quickly erode the integrity of the word organic if widespread fraud is allowed.

Although our understanding is that certified organic farmers and processors will be allowed to use the ‘Canada Organic’ logo if they meet its requirements, our fear is that many will choose not to unless they see a clear marketing advantage. If a large number of these farmers and processors choose not to brand their products with the label, we will continue to have the same marketing problem we have now. There will be a plethora of symbols to represent organic product and consumer confusion will continue. This situation will make it difficult and possibly impossible to market the ‘Canada Organic’ label. This problem must be solved if the proposed ‘Canada Organic’ label is to have any meaning in the eyes of the consumer. While COG understands that the federal government does not have the jurisdiction to regulate on purely provincial matters, it does have the ability to take a leadership role in encouraging provinces to create their own regulations that harmonize with the federal organic regime. We are concerned that the government is moving away from developing memorandums of understanding with each of the provinces and territories.

COG Recommendation

Our comments and recommendations under protection against misleading claims above are also relevant to this discussion. Our interpretation of the regulation is that not only will non certified operators who market their products within a single province be allowed to get away with making an organic claim, so will everyone else, provided they do not use the ‘Canada Organic’ label.

With respect to the issue described above re: intraprovincial trade, COG recommends that CFIA invest the resources and take the lead in developing MOUs with the provinces and territories and encourage the adoption of a single national organic program and use of the organic label.

International Marketing - Import Requirements [Section 10]

10. A person in import trade who wishes to market a product identified as organic shall obtain an attestation issued by the competent authority of the country of origin, attesting that the product is considered organic in that country.

a) standards required for imported products using the "Canada Organic"  designation or logo

The regulation applies to organic products defined as an “agricultural product that has been certified as organic in accordance with these Regulations.” (section 1). Not withstanding the ambiguity of the term ‘organic product’ as described in above, we interpret this to mean that imported products will be eligible to carry the ‘Canada Organic’ label, provided they are produced in accordance with this regulation. Section 10 brings this interpretation into question. It seems to require only that organic products be certified to the standards of the country of origin.

COG Recommendation

Section 10 and the definition of ‘organic product’ must be harmonized to ensure that all products carrying the ‘Canada Organic’ label are certified to the standards of Canada.

b) differentiating imported from domestic organic products

Assuming the draft regulation will be amended to specify that imported products be certified to Canadian standards, we also have some concerns about the ‘Canada Organic’ label. Design of the label must take the following factors into consideration.

First, we suspect that allowing imported organic products to carry the ‘Canada Organic’ label will create confusion in the minds of consumers and may even be misleading. We believe that a ‘Canada Organic’ label will be interpreted as a product of Canada. Consideration of how the label will affect Canadian consumers should be paramount in choosing a label. Whatever label we choose, it must be clear and it must not mislead the consumer.

Second, COG believes that the primary benefit of this regulation will be to kick-start Canadian organic production. This is necessary for the development of a vibrant domestic farming industry. Currently there is an enormous gap between organic demand and domestic production. The ‘Canada Organic’ label will be the primary tool for the industry and for government to build this domestic industry. If the label is designed well, it will make it easier for people to identify and to purchase domestic organic product.

Third, although it is important to design the logo in the hopes that more Canadians will purchase made in Canada products, we cannot afford to destroy our organic sector which currently relies on imports to satisfy 80% of the organic product.

COG Recommendation

Keeping these tenants in mind (truth in labelling and profiling Canadian products without destroying our important import industry), COG recommends that imported products be required to carry extra information on the label indicating that the product is imported as well as the country of origin. This solution is not ideal, however, because it will create a conflict in the mind of the consumer. The consumer will assume that a product carrying the ‘Canada Organic’ label is a domestic product. If you add the term ‘imported’, the consumer may be completely confused (how can it be both a product of Canada and imported?). A potential solution would be a label that reads “Product of [x country], certified to the organic standards of Canada.” The label for imported products should also carry the logo or name of the certification body.

Procedure for Organic Certification and Certificate [Section 11]

11. (1) A certification body shall certify an agricultural product as an organic product if it determines, after evaluation, that

(a) in the case of an agricultural product containing more than one agricultural product, at least 70% of those products are organic products;

(b) the substances used in its production of the agricultural product are those set out and used in the manner described, in the most recent edition of CAN/CGSB-32.311, Organic Production Systems – Permitted Substances List; and

(c) the methods of production used and the control mechanisms in place comply with the requirements set out in the most recent edition of CAN/CGSB-32.310, Organic Production Systems- General Principals and Management Standards and with the generalprincipals respecting organic production provided for in those standards.

(2) The organic certification remains in effect for a period of one year from the day on which is granted.

a) Percentage Organic Ingredients in Multi-Ingredient Products

In 11 1(a), use of the term agricultural product in the context of describing multi-ingredient products is ambiguous.

COG Recommendation

We recommend amending section 11(1) (a) to use the word ingredient’ instead of ‘more than one agricultural product’. This would conform to other international regulations and would make the intent of the clause clearer.

b) Methods of Production Used

The organic sector spent a significant amount of time developing appropriate guidelines. Section 11 1(a) does not do justice to this work. The current wording of section 11(1)(a) with respect to multi-ingredient products is confusing and must be amended.

COG Recommendation

We recommend that Section 11 1(a) reference section 10 of CAN/CGSB-32.310, Organic Production Systems — General Principles and Management Standards.

Specific Requirements [section 15]

15. The label of an organic product shall contain:

(a) the name and the accreditation number of the certification body that has certified as an organic product; and

(b) the case of an agricultural product containing more than one agricultural product, the percentage of each of them that are organic products.

Percentage of each ingredient

Section 15(b) is redundant and confusing.

COG Recommendation

We support amending the regulation to delete the current clause 15(b). In its place, we suggest:

(b) agricultural products containing at least 95% organic ingredients  may carry the ‘Canada Organic’ label; and

(c) agricultural products containing 70 – 95 % organic ingredients may be labeled as ‘Made with Organic ____’

IV.        Proposed Additions to the Organic Products Regulations

Industry Council

Several other jurisdictions, most notably Japan and the US, have encountered significant problems with acceptance of proposed changes to organic rules as a result of lack of consultation with domestic organic industries.

COG Recommendation

Canada can avoid these problems by implementing a formal process to consult with the organic industry. The regulation should be amended to require mandatory consultation on all proposed changes to the standards and regulation with the organic industry through an industry council. As part of the implementation process, the government should set a deadline for the organic sector to develop a council acceptable to all major parts of the organic sector.

Mandatory Five Year Review Process

COG Recommendation

If it is not legally possible to include consultation with an industry council within the regulation, the government should build in a five year review process that includes consultation with the industry. As part of the review, the government must establish a set of benchmarks which can be used to measure success. The five year review should examine the impact of the regulation on producers, processors, certification and accreditation bodies, importers and exporters, retailers and consumers.

Thank you for your consideration of our comments. We look forward to working with the government of Canada to facilitate implementation of this important regulation.

Yours sincerely,

Laura Telford

Executive Director