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April 1, 2010
Consumer Groups Seek FTC and USDA Action on Organic Personal Care Products

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Consumers Union (CU) and the Organic Consumer Association (OCA) filed on March 12th a petition with the Federal Trade Commission (FTC), requesting that the FTC “investigate the widespread, misleading use of ‘organic’ claims on personal care products.” The letter asserts that because the United States Department of Agriculture’s (USDA) National Organic Program (NOP) has not required all personal care products labeled as organic to be USDA-certified, there is widespread consumer confusion. Certain operations, CU and OCA allege, are taking advantage of the large number of industry-based organic certification programs by using the term “organic” on their products without making clear what standard is being used.

This petition to the FTC follows a complaint filed with USDA on January 14th by OCA , Dr. Bronner’s Magic Soaps, Intelligent Nutrients, and Organic Essence. That complaint criticized a number of handling operations for supposedly “selling and labeling personal care products as ‘Organic’ in violation of the OFPA [Organic Foods Production Act] and the NOP regulations.” This complaint to USDA argues that a number of companies marketing “organic” personal care products have not sought USDA certification and do not meet USDA standards for organic labeling. The complaint requests that USDA “investigate and impose civil penalties on the Respondent Companies for mislabeling” and order the companies to “cease and desist from such mislabeling,” along with any other action USDA deems necessary. A March 30th Health News Daily article notes that USDA has responded to the complaint, and “CU and OCA say USDA’s response to their complaint left much to be desired.” A copy of USDA’s response to the complaint is not yet available online.

USDA also has fielded other inquiries regarding organic personal care products in the past year. On July 20, 2009, in response to an OCA letter urging action on organic personal care products, a USDA Agricultural Marketing Service official replied on behalf of Deputy Secretary Kathleen Merrigan, “The USDA regulates organic personal care products only if they are made up of agricultural ingredients. We have no standards for personal care products and have no plans to develop standards at this time.” In November 2009, the National Organic Standards Board (NOSB) voted in favor of recommendations to require USDA certification for organic personal care products. USDA NOP has not yet acted upon the recommendations from NOSB. USDA NOP Director Miles McEvoy noted the issue was “not on the top 10 in terms of our priority list, but it is certainly really important.”

These recent complaints illustrate the controversy surrounding labeling personal care products as “organic” absent USDA certification. Manufacturers and sellers of personal care products labeled as organic should pay close attention to such complaints and the future actions of the USDA NOP and FTC.

Organic Consumers Association and Consumers Union Federal Trade Commission Petition: http://www.consumersunion.org/pdf/FTC-petition-0310.pdf.

USDA Complaint Against Handling Operations Selling and Labeling Personal Care Products as “Organic” in Violation of OFPA and NOP Regulations:    
http://www.organicconsumers.org/bodycare/documents/Complaint.pdf.

Transcript of the November 2009 National Organic Standards Board Meeting:    
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5081269&acct=nosb.

Health News Daily, “Groups Seek FTC Action on Organic Labeling for Personal Care Products,” http://healthnewsdaily.elsevierbi.com/.

If you have questions about any of these items, please contact one of the lawyers listed below or your regular Sidley Austin LLP contact.

Alan Charles Raul
+1.202.736-8477
araul@sidley.com

Andrew Strenio 
+1.202.736.8614 
astrenio@sidley.com

Diane McEnroe
+1.212.839.5621
dmcenroe@sidley.com


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