Because a growing number of consumers believe there is an advantage to purchasing organic products, the United States Department of Agriculture (“USDA”) is concentrating on eliminating food and beverages improperly labeled as organic.  The USDA National Organic Program (“NOP”) published its final rule entitled “Strengthening Organic Enforcement (“SOE”).  This rule will be implemented as of March 19, 2024.  

Before wine may be labeled organic, the growing of the grapes and their conversion into wine must be certified as being made without the use of prohibited substances or genetic engineering.  For instance, the grapes must be grown without the use of synthetic fertilizer and in a manner that protects the environment and preserves the soil.  Any other agricultural product that goes into the making of the wine must also be certified as organic.  Although sulfites that naturally occur in the making of the wine are permitted, additional sulfites may not be added to the wine.  Certification is not done by the USDA. Rather, the USDA and governmental agencies in other countries have authorized specific third-party entities to issue certificates attesting to the fact that the product is authorized to be labeled as organic. A list of accredited certifiers can be found at: https://www.ams.usda.gov/services/organic-certification.  

A USDA spokesperson explained, “The Strengthening Organic Enforcement (SOE) final rule better protects consumers by preventing fraud in the organic supply chain. The new SOE rule does that by requiring organic certification of most businesses in organic trade, including importers. The rule defines handling to include importing and exporting to the United States. One of the primary points of the rule was to create a certification handshake across the border – so that there is a certified exporter to the U.S. and a certified importer into the U.S. The NOP Import Certificate … provides traceability to the U.S. ports of entry and ensures an auditable record trail. The exemptions in the rules § 205.101(e) and (f) explain handling activities and packaging that may be exempt, but importing and exporting are not exempt regardless of packaging. Further, there is nothing preventing a buyer from contractually requiring organic certification to ensure the organic integrity of a shipment.

Organic certification is the only way USDA can track organic shipments and keep a link of accountability across the border. With SOE, we can oversee the supply chain and act more quickly to keep fraud out of the market. We encourage certification of any and all entities working in organic trade.”  

The United States has entered into agreements with Canada, the European Union, Japan, the Republic of Korea and Switzerland.  Each of these countries has its own process for certifying a product as organic.  The United States recognizes a certificate issued in accordance with the laws of one of those jurisdictions.  Of course, organic products sold in the United States must meet all general label requirements as well as commodity specific label requirements, such as the requirement for wine to have a certificate of label approval from the TTB.  Regardless of whether the products are labeled organic, the shipping documents must contain a harmonized tariff schedule code for tracking purposes.  See Organic Trade HS Codes | USDA Foreign Agricultural Service.   In addition, it is imperative that the importer check to make certain that the supplier has complied with its obligation to register its food facility with the FDA and has obtained any required current food registration numbers.  Beginning March 19, 2024, each shipment of a product imported into the United States and labeled “organic” must have associated with its Automatic Commercial Environment (“ACE”) entry filing a NOP Import Certificate. 

The NOP certificate may be issued by a USDA accredited certifier, or an accredited certifier recognized by one of the countries that has entered into a recognition agreement with the United States.  For a fee, the accredited certifier periodically inspects the vineyards, storage areas, production facilities and processes and certifies the product as organic.  When the supplier is ready to ship its products to the United States, it requests an NOP Import Certificate from its accredited certifier. Assuming everything is in order, the accredited certifier generates the NOP Import Certificate in the USDA’s Organic Integrity Database and provides it to the requesting supplier/exporter.  The supplier/exporter sends the electronic NOP import certificate to the United States importer, and the importer enters the certificate into ACE.   See CSMS # 59863856 – USDA Agricultural Marketing Service Organic Filing Requirements – Mandatory March 19, 2024 (govdelivery.com). 

In order to avoid costly delays, it is imperative that suppliers and importers follow comply with the FDA requirements. 

 ^{1. Keven Danow is an attorney representing members of all three tiers of the Beverage Alcohol Industry and member of the firm of Danow, McMullan & Panoff, P.C. 275 Madison Ave, NY, NY. 10022.  (212 3703744). Website: thedanowgroup.com; email: kdanow@thedanowgroup.com. This article is not intended to give specific legal advice. Before taking any action, the reader should consult with an attorney familiar with the relevant facts and circumstances.}