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UNIVERSITY OF TOLEDO LAW REVIEW
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Vol. 26 |
processor (handler) from adding synthetics.62 Section
6510(a)(4) prohibits the same handler from using non-organically produced ingredients,
notwithstanding the apparent exception-creating vis-aŽ-vis "a National List
of allowed non-organic ingredients."63
This exception evaporates if one reads section 6517 in its entirety. That is,
section 6517(c)(1) is satisfied only of all of (A), (B) and (C) are fulfilled for an
ingredient.64 If non-organic ingredients were to be used,
(A)(iii) would never be fulfilled, and (A)(I) would not be fulfilled for the
immune-suppressed and chemically sensitive individuals on all-organic diets under
physician direction.65 Section (A)(ii) would never be
satisfied for non-organically produced ingredients because an organically produced
alternative product is virtually always available.66
Furthermore the term "available" in (A)(ii) was not meant to be
read as "commercially available," but as "solely available."67 Serious organic processors would always find, contract or
actually produce an organic substitute. It seems that "availability" in this
section was meant only to deal with the tough issues like agar-agar or ammonium carbonate,
not for example, organic cayenne pepper.68
Further, (A)(iii) could prohibit naturals that are inconsistent with organic
farming and handling.69 Non-organically grown products would
certainly appear to be inconsistent with organic production.
B. Phase-out, Phase-in
The idea of phase-outs and phase-ins is clearly to precede promulgation
and cannot legally extend beyond a delayed promulgation date. The National List must be
short and contain use and application identification. Consistency mandates that
data gaps be exemption disqualifying.
62. 7 U.S.C. §
6510(a)(1) (Supp. V 1993).
63. 7 U.S.C. § 6510(a)(4) (Supp. V 1993).
64. 7 U.S.C. § 6517(c)(1) (Supp. V 1993) (noting
that the "National List may provide for the use of substances in an organic farming
or handling operation that are otherwise prohibited under this chapter only" under
certain listed circumstances)
65. 7 U.S.C. § 6517(c)(1)(A)(I) & (iii) (Supp. V
1993).
66. 7 U.S.C. § 6517(c)(1)(A)(ii) (Supp. V 1993).
67. See 7 U.S.C. § 6517(c)(1)(A)(ii) (Supp.
V 1993). Section 6517(c)(1)(A)(ii) provides that a substance otherwise prohibited by this
chapter may be included on the National List if it "is necessary to the production or
handling of the agricultural product because of the unavailability of wholly natural
substitute products." Id.
68. S.REP. NO. 357, 101st Cong., 2d Sess. 289,
299 (1990).
69. 7 U.S.C. § 6517(c)(1)(A)(iii) (Supp. V 1993).
70. Section 6517(b) clearly requires us
identification, and paragraph one under the National List in the Senate conference report
mandates a short list. 7 U.S.C. § 6517(b) (Supp. V 1993).
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