Non-Organic Whey Protein Unfit For Products Labeled As Organic Under USDA Proposal
Executive Summary
USDA proposes amending National Organics Program’s list of allowed and prohibited substances to remove non-organic whey protein, five other ingredients and eight colors from use in organic-labeled products.
The supply of organic whey protein in the US has beefed up enough that dietary supplements and other products containing non-organic options no longer would be allowed to use organic labeling under a US Department of Agriculture proposed rule.
In a 24 August Federal Register notice, the USDA’s Agricultural Marketing Service (AMS), proposed amending the National Organics Program’s National List of Allowed and Prohibited Substances to remove non-organic whey protein as well as five other ingredients and eight colors from use in processed organic-labeled products (see table).
A USDA advisory committee, the National Organic Standards Board, determined all substances identified in the notice no longer are necessary due to organic alternatives or because they otherwise no longer comply with criteria for listing.
The standards board every five years reviews the National List to decide if substances should be retained; AMS routinely follows the recommendation to bump them off.
The American Herbal Products Association currently is evaluating members’ response in the notice and will consider submitting comments if members request it, says Robert Marriott, the trade group’s director of regulatory affairs.
“Any position by AHPA regarding any of the substances mentioned in the notice will be informed by member feedback,” Marriott said in an email.
Companies that continue to use the substances removed from the list after a sunset date likely would get into trouble with the AMS if they continue to make organic claims for products. The AMS regulates the “USDA Organic” seal as well as four labeling categories of organic claims: “100 percent organic,” “organic,” “made with” organic ingredients and claims of specific organic ingredients. Labeling must also include the name of the certifying agent. [(#ARS130900)]
The standards board allows for the presence of other material only if no organic version is available. Any products on the National List are allowed for use in a product with an “organic” claim, although those non-organic ingredients must make up no more than 5% of the combined total ingredients.
The USDA is accepting comments through 25 October.
‘Robust Supply’ Of Organic Whey Protein
On the removal of non-organic whey protein concentrate, Marriott noted the ingredients were included on the list in 2007 before organic options became available and had been renewed in two standards board reviews.
“It’s removal from the national list is simply a recognition that organic sources are now commercially available,” Marriott said.
Whey protein often is used in body building and weight-loss formulas as a way to add protein to the diet.
At a fall 2015 meeting, the standards board’s recommendation to remove non-organic whey protein wasn’t finalized by AMS after public comment asserted that whey protein concentrate was essential to organic processed products and no commercially available organic products was available, according to the USDA notice.
However, during the 2020 sunset review, the standards board received “many” comments supporting removing whey protein concentrate due to the availability of organics. The board “cited several commenters who demonstrated that they produce a robust supply of organic whey protein concentrate in several forms and sell excess to the conventional market,” the notice states.
A search in the USDA’s Organic Integrity Database for whey protein concentrate shows 22 operations with some form of certified organic whey protein concentrate, according to the AMS.
National List Has Critics
The National Organics Program, particularly its National List, has been a target of criticism from some organic farming stakeholders.
In 2016, a coalition of 15 organic food producers and the research group Center for Food Safety filed a complaint in the US District Court for Northern California alleging USDA violated the Administrative Procedures Act when it changed practices under the Organic Foods Production Act on allowing certain and synthetic and natural substances to remain on a list of substances that may be used in food certified as organic under the organics program.
The USDA traditionally has required automatic cycling of those substances off the list of allowed materials every five years, but the department in 2013 made a change allowing for a “sunset” procedure, by which those materials could remain unless the standards board recommended removal. (Also see "Farm Policy Group Questions Lobbyists' Influence On USDA Organics Program" - HBW Insight, 19 Dec, 2016.)
The change prompted the Center for Food Safety to file a complaint in the US District Court for the Northern California in 2015, noting the sunset notice is a “substantive rule that injuries organic consumers, farmers and producers” and weakens the integrity of the organics program.
The center argued the USDA must provide advanced publication of the proposed rule to promulgate the sunset notice and opportunity for public comment as required under the Administrative Procedures Act.
However, in May 2018 the court ruled in USDA’s favor after determining the sunset notice wasn’t a “final agency action”; reaching final agency action is a prerequisite to judicial review under the APA.
USDA’s decision on renewing or removing a substance from the National List “represents the agency’s consummating action. The Notice does not itself alter any criteria or standards for the evaluation of a particular substance,” the court stated.