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| Winter 1995 |
Winter 1995] ORGANIC FOOD PRODUCTION ACT
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341 |
board against permittance prohibits synthetics automatically unless an
exception is made. That is, the burden of proof of permissibility lies with a synthetic
material, the case for which must overcome its presumed harmfulness by a neutral
presentation from technical reviewers.84 These reviews should
objectively convince a majority of the board to deviate from the basic tenet of the OFPA:
that synthetics are generally harmful or at least undesirable in organic production and
processing.
However, the situation for natural materials is not as clear. In
general, naturals are presumed harmless by the Act. Therefore, to prohibit a natural
requires two-thirds of the voting board to prohibit. This requirement prevents a minority
of the board from negating the presumed harmlessness of a natural material (granite dust,
sand, etc.). This is again consistent with the basic OFPA synthetic versus natural tenet.
It is not possible to apply this "rule by poll" for the
natural (so-called "botanical") pesticides because the burden of proof is
shifted to "assumed harmfulness"85 even if these
active insecticidal materials are 100% natural. Therefore, the statute requires a
two-thirds vote or greater to permit—or a greater than one-third vote to
prohibit—a "botanical" pesticide, even if the pesticide formulation does
not contain toxic synthetic "inert" ingredients (although most of them do
contain toxic inerts).86
- Summary of the National List Process for Synthetics
To be on the National List, a synthetic material must not be harmful
to human health, have no wholly natural substitute and be consistent with organic farming
and handling.87 The material must also fit within a short
list of seven use and application categories.88 Additionally,
the material must not contain any EPA "inert" classified ingredients of
toxicological concern.89 This requirement only applies for
production. Handling and processing of the material cannot involve synthetics.90 Finally, the material in question must also survive the scrutiny
of the seven criteria under section 6518(m).91
84.
Reviewers should present materials cases by blind code for each material so that the NOSB
is not prejudiced by favored and /or historical use or presumed need for a given material,
and reviewers should refrain from mentioning these factors in the reviews.
85. 7 U.S.C. § 6517(k)(4) (Supp. V 1993).
86. The meaning of the results of the votes on
"botanical" pesticides taken at the Rohnert Park, California NOCB meeting in
October 1994 needs to be re-examined in this light. Rotenone (and possibly others) have
been de facto prohibited by virtue of the greater than one-third votes against its
allowance.
87. 7 U.S.C. § 6517(c)(1)(A), (B) (Supp. V 1993).
88. 7 U.S.C. § 6517(c)(1)(B)(I) (Supp. V 1993). See
S. REP. NO. 357 101st Cong., 2d Sess. 289 (1990), reprinted in 1990
U.S.C.C.A.N. 4656, 4943.
89. 7 U.S.C. § 6517(c)(1)(B)(ii) (Supp. V 1993).
90. 7 U.S.C. § 6510(a) (Supp. V 1993).
91. 7 U.S.C. § 6518(m) (Supp. V 1993).
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