The United States Department of Agriculture’s (USDA) new final rule, “Strengthening Organic Enforcement,” will go into effect on March 19, 2024. The new rule, which implements changes introduced through the 2018 Farm Bill, is intended to strengthen organic control systems, improve farm to market traceability, and provide robust enforcement of the USDA organic regulations.
 
At the American Herbal Product Association’s (AHPA) Regulatory Congress, experts involved in overseeing the National Organic Program and certifications emphasized the importance of ensuring full compliance across the supply chain.
 
The final rule will reduce the number of uncertified entities in the organic market, primarily by removing previous exemptions for certain businesses like brokers and traders. Additionally, all imported organic products will be required to obtain import certificates, and the certificates of organic operation will be standardized under the new rule.
 
There are several new fraud prevention measures in place as well. There will be new record-keeping requirements in order to ensure that audit trails are more robust, and intact from farm to shelf. Certified operations will be required to engage in more frequent reporting of data, and each firm will need to provide certifying agents with fraud prevention plans.
 
“There have been many documented cases of organic fraud,” said Jennifer Tucker, deputy administrator of the National Organic Program. “To combat it, we’re implementing many great recommendations from our advisory board, as well as from our experience in enforcement.”
 
“Some people have held back on getting certified until now, but are realizing that these changes are imminent,” said Tucker. “Certifiers, however, have been planning for this, and are actively ready to accept clients, and a number of them are posting availability on LinkedIn.”

Fewer Exemptions

Under the new final rule, anyone facilitating the trade or transport of organic materials or products should assume they need to be certified if they aren’t already, Tucker said. The only exemptions from certification are for retailers, a limited number of shipping and handling operations, and most of those who handle finished products domestically.
 
“We’re encouraging everyone working in organic trade to get themselves certified, even if exempt,” she said. “Even if you’re exempt, you still have to participate in recordkeeping and may get questions from Customs and Border Protection (CBP) if you handle organic products.”
 
Even though traders, commodity brokers, and importers don’t physically handle organic material, they’re all required to be certified, Tucker noted.
 
“Trace-backs require a continuous trail of certified entities, so we can track products from the grocery store back to the farm where they were grown. That’s what the organic seal promises. This is a premium product that people are paying more for,” Tucker said. “It can also help organizations understand where the weaknesses are in their supply chains, and get a better handle on supplier dynamics to better identify risks both inside and outside of organic specifications.”
 
Johanna Phillips, technical director at Ecocert USA, recommended that organic companies carefully consider whether it’s worth having any firms within a supply chain that are not certified, even if exemptions apply to them.
 
“The rule is very clear: certified operators who accept uncertified entities into their supply chains become responsible if fraud is detected. If you choose to accept an uncertified entity, they become your liability, so carefully evaluate how much risk you’re willing to accept. If suppliers are actively looking for avenues to get exempt from certification, really consider if it’s worth it to keep working with them.”

Imports

The provision of the final rule includes a new definition. Organic exporters are defined as the final certified exporter of an organic agricultural product who “facilitates the trade of, consigns, or arranges for shipping,” Tucker said. Because exporters aren’t necessarily the final handlers, an additional entity might also need to receive an import certification in order to export a product if they handle it after the exporter.
 
Importers are now required to log data into the system of record available through the U.S. Customs and Border Protection (CBP), and must also verify that a product wasn’t treated in transit with anything that would affect its organic status. CBP is prepared to enforce the new organic rule set beginning on March 19; its system is programmed to accept import certificates.
 
“We’ve worked with the governments of several other countries to give them lists of certifiers, and many countries have begun to populate their own lists of certifiers who are authorized to issue import and export certificates,” Tucker said.
 
The scope of coverage in every import certificate is up to a certifier’s discretion. Agents can opt to cover single shipments, or multiple shipments over a time period, the latter of which is more likely in scenarios where many shipments will cross a border over a smaller time window. 

Creating a Fraud Prevention Plan

Certifying agencies expect organic operations to take specific steps within their fraud prevention plans, which should be a “multi-disciplinary, cross-functional process” involving quality, human resources, and legal teams, noted Gwendolyn Wyard, founding partner at Strengthening Organic Systems. “The key is to think of an organic fraud prevention program as a continuously improving process.”
 
While this will be the most time-consuming element of USDA’s new requirements, it will also be the most important, according to Phillips. 
 
For the first time, certified organic operations must now describe to certifiers the full scope of how they intend to prevent organic fraud, and while there is flexibility depending on the operation type built into the rule, it begs a lot of questions about what certifiers consider to be appropriate measures.
 
But most of the new organic fraud prevention provisions have already been in place on a global level, as this portion of the USDA rule closely follows guidance from the think tank Food Fraud Initiative, which was adopted by the Global Food Safety Initiative in 2018.
 
“We’re not reinventing the wheel; this system is already in place and we’re just narrowing its scope to an organic lens,” said Wyard. “Prevention is the name of the game, it’s about thinking like a criminal and figuring out where fraudsters are most likely to penetrate the system and prevent the act from occurring, in a practice known as ‘target hardening.’”
 
Organic certifiers expect clients to share with them four unique steps: vulnerability assessments which map out weaknesses and supply gaps; practices to prevent these vulnerabilities; proof of monitoring; and having a process in place for reporting suspected or detected fraud to the National Organic Program.
 
Vulnerabilities expected in any organic operation can occur from the source level to any supplier along the way. Every ingredient has a history of fraud, and market price, especially in periods of high demand and limited supply, can be a major red flag, as well as outlandish agronomic factors relevant to the region one sources from. It’s also important to make sure every supplier in the chain is also conducting the right audits.
 
Some good places to start when managing these vulnerabilities can include programs to verify, approve, or monitor every individual supplier, and require that suppliers have an integrity operator that can report to clients. The Organic Trade Association also recommends a number of mandatory practices for receiving and verifying products, Wyard noted.