Hoban Law Group: Organic Label Claims 101: What Hemp Businesses Need To Know Before Claiming “Organic” the Product Label

Hoban Law Group: Organic Label Claims 101: What Hemp Businesses Need To Know Before Claiming “Organic” the Product Label

If you operate a business that manufactures, distributes, and/or sells hemp foods, supplements, or cosmetic products, your product may contain some organic ingredients. Your products may also include hemp extract ingredients derived from USDA-certified “organic” hemp crops.

Organic Label Claims 101: What Hemp Businesses Need To Know Before Claiming “Organic” the Product Label

What Makes Hemp Organic?

If you operate a business that manufactures, distributes, and/or sells hemp foods, supplements, or cosmetic products, your product may contain some organic ingredients. Your products may also include hemp extract ingredients derived from USDA-certified “organic” hemp crops.

But what does this mean in terms of reflecting these organic ingredients on your product’s label? If your product contains some certified organic ingredients, does this mean you can use the “USDA Organic” seal? Can you claim the product includes ingredients derived from “organically grown” hemp? Can you claim the product generally contains “certified organic” ingredients anywhere on the label?</p

Well, the answers to these questions depend on several factors. Whether you can claim “organic” on your product’s label will generally depend on the category of organic products in which your product falls.

Hemp and The USDA National Organic Program

Notably, the USDA National Organic Program (NOP) has implemented rather stringent requirements to make any type of organic claim about a product, particularly claims that use the word “organic” on any prominent panels of the label. So, while you might be meaning to include a seemingly truthful representation on your product’s label concerning organic ingredients, such a claim could be violating NOP rules without you realizing the claim is a violation. This can happen even if you do not actually use the “USDA Organic” seal anywhere on the label. Even if the claim appears to be truthful, such as claiming the product is “Made With Organic Ingredients.”

Hemp and USDA Requirements

Generally speaking, the USDA requirements for products that are labeled with the term “organic” are separate from the laws that FDA enforces. Products that are ordinarily under FDA’s jurisdiction and labeled with organic claims must comply with both USDA NOP regulations for the organic claim and FDA regulations for food/cosmetic labeling and safety.

In a nutshell, there are four general classifications of organic claims to be made on product labels:

  1.     100% Organic
  2.     Organic
  3.     “Made With” Organic
  4.     Specific Organic Ingredients

Note that organic products must generally be: (1) produced without excluded methods (e.g., genetic engineering), ionizing radiation, or sewage sludge; (2) produced per the National List of Allowed and Prohibited Substances; and (3) overseen by a USDA National Organic Program authorized certifying agent, following all USDA organic regulations.

Various factors determine which of the above four categories of products your product may fall, such as the percentage of “certified organic” ingredients comprising the product formulation and whether the product itself has been certified by a certifying agent (e.g., Oregon Tilth).

For example, when products indicate they are “Made With Organic [Specific Ingredient],” this means they must contain at least 70% organically produced ingredients. The remaining non-organic ingredients must be produced without using prohibited practices (genetic engineering, for example). Still, they can include substances that would not otherwise be allowed in “100% Organic” products, for example. “Made With Organic” products cannot bear the USDA organic seal, but, as with all other organic products, must still identify the USDA-accredited certifier.

Hemp and The Use of the Word Organic

Additionally, while some products may contain some certified organic ingredients, the use of organic ingredients in the product does not necessarily mean you are free to use the word “organic” anywhere on the product label, even if the claim is seemingly accurate. For example, suppose a product contains less than a certain percentage of “certified organic” ingredients. In that case, any use of the word “organic” outside the ingredient list on the information panel may not be permitted under NOP regulations. Even if the “USDA Organic” seal is not used on the label, using the word “organic” on various panels of the label, particularly on the front panel, could still violate NOP regulations.

Note that when a business has represented products as organic without certification, penalties can be up to $11,000 per violation according to USDA guidelines.

If you are unsure whether you can claim an ingredient is organic, generally represent the product as organic or derived from “organically grown” hemp, or make any other organic claims on the label, our attorneys at HLG are here to help. We can assist in reviewing your product labels to ensure that all organic claims are in full compliance with USDA NOP regulations, in addition to all other applicable labeling laws and regulations.

Source: https://hoban.law/category/practice-areas/hemp-practice-areas/

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