Hanspeter Schmidt

Some Legal Aspects of the Regulations (EC) No. 834/2007 and 889/2008 on Organic Food Products

Hanspeter Schmidt, Attorney-at-law, Germany
December 2008

(1) „Legislation by derogation“ was named as the No. 1 problem and as one of the reasons for a total revision: 66 „derogations“ were described to as a major deficiency of Regulation (EEC) No. 2092/91.1  Here „derogations“ referred to non-organic farm inputs which could only be used in organic farming under the condition „need recognised by the inspection body“. Annex I 2.1. of Regulation (EC) No. 2092/91 permitted these inputs, such as slurry from conventional animal husbandry, only exceptionally and only as a complement to the extent that adequate nutrition of the crop being rotated or soil conditioning were not possible by organic management instruments (cultivation of legumes, a multi-annual rotation schedule, or manure from organic livestock production). In order to decide on this need organic inspection bodies had to enter into an analytical exchange on the organic plan of the farm. This professional discourse resulted in a reliable, mutually agreed management basis for the organic farmer.
The revised law still permits non-organic fertilisers only where the nutritional needs of plants cannot be met by organic management  measures. It did not change the management rules. However, now farmers act on their own risk.2  They recognise a need and than they use positive-listed substances on their land. The control body reviews this practise. If it does not agree in its post factum review, it reports an infringement. The German „Land“ Baden-Württemberg requires organic farmers to pay back organic conversion subsidies for five years in cases where an infringement has been reported by the organic inspection body. Thus organic farmers risk their farms.

(2) The new Regulation are referred to as „Simpler, clearer and more transparent“. This may be correct for legal professionals. From others the new texts require mind-boggling efforts in ZICK-ZACK-reading. Most actors in the revision process are, for example, likely to have never understood, what it meant to refer to the rules for mandatory GM labelling in order to determine the exclusion of traces of genetic engineering from organic products.

(3) The exclusion of genetically modified organisms (GMO) from organic production has been connected with the EU scheme on mandatory GM labelling.3
This GM labelling scheme provides for numerous loopholes, which allow for the presence of genetically modified materials beyond 0,9% in organic products: Unwanted components, for example, such as those introduced by dust in grain elevators or mills (Fremdbesatz) are believed not to trigger mandatory GM labelling in accordance to Regulation (EC) No. 1829/2003. This is supposed to apply regardless of whether the 0,9 per cent limit is exceeded or not, since the labelling requirement does not apply at all.4
The same is correct with respect to substances, which are present in organic food products, but which are not covered by the term "ingredient".5  Not in the scope of the term "ingredient" are for example, the constituents of an ingredient which have been temporarily separated during the manufacturing process and later reintroduced but not in excess of their original proportions; additives: - whose presence in a given foodstuff is solely due to the fact that they were contained in one or more ingredients of that foodstuff, provided that they serve no technological function in the finished product, - which are used as processing aids; substances used in the quantities strictly necessary as solvents or media for additives or flavouring. In addition, exempt from GM labelling requirements are “substances which are not additives but are used in the same way and with the same purpose as processing aids and are still present in the finished product, even if in altered form.6
The reference to EU mandatory GM labelling as a sufficiently reliable indication for organic farmers and processors to exclude genetic engineering from their practices opens numerals loopholes through which GM traces may be introduced into the organic products.

(4) The term “technically unavoidable” was thought to provide for safe distances in coexistence schemes for the separation of GM and organic cultures. This has no basis in EU practises.
Mandatory GM labelling is not be applied to foods containing a portion of genetically engineered ingredients no higher than 0,9 per cent of the food ingredients, but only provided that this presence is advantageous or technically unavoidable.  
Technically unavoidable is not any level of GM presence below the 0,9 per cent level which may be achieved by separation distances, such as 800 meters between GM and organic maize fields. Rather, coexistence schemes are supposed to deliver no more than levels not higher than 0,9 per cent. Thus this level became a GM target level.7
 
(5) Animal species, such as rabbits or fallow deer (Dama dama) and micro algae, such as chlorella and spirulina, have been subject to private organic certification in accordance to private standards for years. They had been excluded from the scope of Regulation (EC) No. 2092/91. Now they are in the scope of the EU organic certification scheme. Private organic certification is no longer sufficient to market these products as organic in the European Union. But there are  no EU production rules. Instead the law of the member state, where the product originates, applies, if there is any. If there is none, which is as a rule the case, the private standards which have been accepted or accepted by the member state apply.
"Accepted" means, that there has been a decision by either a national legal norm or an administrative decision, based on a procedure provided for a by a legal norm, which is rarely the case. "Recognised" refers to member sates, which are the rule, where private standards shaped the marketing practise and thus determined  the buyer’s rightful expectations with respect to products labelled organic. This rightful expectation determines at the same time, whether organic labelling is considered misleading and therefore prohibited by food or unfair competition law. Consequently, organic inspection of these products has to be performed by the organic certifiers in EU public organic certification scheme in accordance to the private standards.8

(6) There are no rules for organic aquaculture in EU law. Regulation (EC) No. 889/2008 orders the application of production, labelling and control rules to be applied mutatis mutandis to products from aquaculture, seaweed and livestock, such as rabbits and fallow deer. Here also organic certification is to be performed via direct application. No recognition decision by national authorities is required.
Third country products require a decision by the competent authority of the member state, in which they are imported. The competent authority has to render its decision on the placing on the market of these products based on the private standards in the absence of a national public norm.  They may not abstain from granting such authorisations based of lack of national norm or the lack of a decision to accept a private norm, since private norms recognised by market practice are provide for directly applicable law.9

(7) Organic yeast is not only in the scope of the EU organic certification scheme, but Regulation (EC) No. 889/2008 as amended by Regulation (EC) No. 1234/2008, provides for detailed production rules. For a transition period until December 2013, products, which comprise up to half of the agricultural ingredients non-organic yeast, may carry an organic label.10

(8) Wine is in the scope of application for both the EU organic certification scheme as well as a labelling rules.  There are detailed processing rules yet. In the absence of those, the general rules of EU law for wine making, which set a rather strict normative standards, apply for organic wine processing as well. Consequently, there is no normative basis to require the statement "wine made from crapes from organic agriculture" in the labelling organic wine.11

(9) The EU Commission considers a common organic label identification as essential. However, it refused to harmonise the identification codes of the organic inspection bodies, which have been a mandatory labelling requirement for more than ten years.
These codes never developed into common EU-wide markers for organic food products, since the codes, where developed by each of the member states separately in such an extremely divergent manner, that even organic marketing experts would not necessarily recognise organic inspection IDs on food labels as such. In the IDs no indication of the use for organic products was required. This has been changed. Now the structure of the IDs have been harmonised: An explicit reference to organic production is mandatory.12 These Ids will work as a clear indication to consumers, that the food product is subject to the EU organic inspection scheme.

(10) However, the introduction of a mandatory EU organic logo. The first logo draft of December 2007, prepared by an external contractor was very close to the ALDI logo, a large German food chain. Now the Commission plans a competition for young design and art students. Five logo drafts from this competition are to be submitted to European citizens for a vote. The Commission plans to present the best one in a proposal for an amendment to the Regulation (EC) No. 889/2008 to the member states. No professional expertise in trademark development and communication psychology this likely to play a role in this process. The second effort to develop a EU organic logo might thus fail as well.

(11) If, however, should the logo as planned be developed until July 2010, it will not gain practical importance in the market, since it will hardly ever be placed on the show side of food packaging.13
This is due to the conditions for the use of the logo as they have been introduced by the Commission. The code number of the control body is to be placed immediately below the community logo. And the indication of the place where the agricultural raw materials of which the products is composed have be farmed, is to be place immediately below this code number. This geographic origin indication reads "EU Agriculture" or "non-EU Agriculture" or "EU/non-EU Agriculture".14
The EU logo can thus not be used on the showside (face visible in the self) of organic food products as an eye-catcher, but only in the context of a rather clumsy mandatory EU organic labelling tableau of three obligatory elements.
Product managers will ascertain, that the EU organic logo is always placed on the back side of the packaging. Here all the other mandatory indications required under EU food law, such as the list of ingredients, are typically found in accordance to well established marketing practices.
The requirement, to combine the community logo, the code number and the geographic origin indication, to this mandatory organic label tableau,  practically annihilate usefulness of the logo, whatever its graphic design will be. Its not easy to understand, what led the Commission to propose this mandatory organic labelling tableau. This requirement will be instrumental to provide for the permanent presence of national logos on the show side of products while the EU organic logo will be placed on the back. The mandatory organic labelling tableau provides for a bright and permanent future for national logos such as the "Biosiegel" in Germany or the "AB"-logo in France. It seems that the EU Commission is not very clear in the implementation of its policies.



1     http://www.organic-revision.org/dissim/con06/Standards_variation
_Kim_Boesen_Odense_D3.pdf, ppt 4
2     When member states asked in the 74th meeting of the Standing committee on Organic Farming on 26 May 2008 to leave the system of need recognition by the organic control bodies intact, the Commission refused to do so. It argued, that this could not be done, since this was not foreseen by Regulation (EC) No. 834/2007. This explanation was incorrect, since there is nothing in Regulation (EC) No. 834/2007 which required or made it even plausible to replace the prior system of need recognition. The Council Regulation transferred to the Commission broad law-making powers to determine whether to change the need recognition system or not. The Commission obviously considered necessary to limit the role of organic certifiers in the shaping of organic managment plans.
3    Article 9 of Regulation (EC) No. 834/2007
4    CIAA (EU Food and Drink Confederation), GUIDELINES FOR THE EUROPEAN FOOD AND DRINK INDUSTRIES, New EU regulations on GMOs EU Regulations on Genetically Modified Food and Feed ((EC) No 1829/2003) & Traceability and Labelling of GMO and of Food and Feed Products produced from GMO ((EC) No 1830/2003), Brussels 2005; http://www.ciaa.be/documents/brochures/GM%20guidelines.pdf
5    Article 2 Number 13 of Regulation (EC) No. 1829/2003; Article 6 (4)  of Directive 2000/13/EC
6    Article 1c of Directive 2003/89/EC
7    Article 12 (29 of Regulation (EC) No. 1829/2003
8    Article 42 of Regulation (EC) No. 834/2007
9    Article 19 of Regulation (EC) No. 1235/2008
10   Article 27 (2)(c) of Regulation (EC) No. 889/2008
11  Consideration (7) and Article 2 (2)(b) of Regulation (EC) No. 834/2007
12   Article 58 (1) of Regulation (EC) No. 889/2008
13    Regulation (EC) No. 967/2008
14   Required under Article 24 of Regulation (EC) No. 834/2007 in accordance to Article 58 of Regulation (EC) No. 889/2008 in a prescribed tableau