Certified Organic Flavors Now Required for Certification

Scott Svihula, Owner of Hula Consulting, shares his opinion below on the National Organic Program's final rule to require organic flavors when they are available. The National Organic Program (NOP) published a final rule that amends the National List of Allowed and Prohibited Substances (National List). This rule will be fully implemented January 28, 2019, with the exception of the amendments for the substances ivermectin, flavors, cellulose, and glycerin, which will be implemented December 27, 2019.  The new ruling on flavors requires the use of organically certified flavors whenever commercially available. Since the USDA did not post guidelines or list what is commercially available, each certifying agency will have its own set of requirements, ranging from a simple form to more complex documentation. Regardless, any certified organic tea using natural flavors under the 95 percent rule will need to be re-evaluated using organic certified flavors or collect documentation that its needed flavor is not commercially available. Each agency will have to determine if a flavor is considered commercially available or not at this time.  To read the final rule in its entirety, please reference the federal register here.

Most flavors used in the tea industry are organic compliant natural non-GMO flavors, but these will no longer qualify for certification. Certified organic flavors will have to be used if commercially available. The definition for commercial availability is in the rule 205.2 Terms defined. “Commercially available. The ability to obtain a production input in an appropriate form, quality, or quantity to fulfill an essential function in a system of organic production or handling, as determined by the certifying agent in the course of reviewing the organic plan.” The reason why something is not commercially available must comply with the definition above: form, quality or quantity to fulfill an essential function and must not be based on price. This poses several questions that are currently unanswered. For example, let’s take strawberry. There are many ways to make a strawberry flavor: typical strawberry used in kids’ drinks and medicines, red ripe strawberry, sweet slightly over ripened strawberry, unripe strawberry, wild strawberry, earthy strawberry, candied strawberry, etc. Even though certified organic strawberry flavor is readily available; can it be made organically in all these variations? Since each certifying agency will be making their own determination of what is considered “commercially available”, if one company submits strawberry as organically certified, will that mean that for that agency everyone will need to use certified organic strawberry flavor, even if your specific taste profile is not available? What about flavor suppliers? What if the flavor supplier you use and have partnered with cannot make your flavor certified organic? Is there an expectation that you would need to find another supplier to make it certified organic before you state it is not “commercially available”? And how many flavor companies will you need to contact? As you may know, not all flavor houses know how to create flavors for tea, some excel at this while others struggle. Not to mention that, certified organic flavors are typically about 20-30 percent costlier and have about 1/3 the strength in aroma and taste. In talking to several tea manufacturers, the decision of what to do next will be challenging. There are basically 3 paths to take to comply with this new regulation.

1. To keep your organic certification, change the application of your 95% certified organic flavored teas to the 70%/30% category. The new ruling does not affect this category; though you will not be able to use the USDA seal. (see chart below for more details)
2. Drop the 95% certified organic flavored teas from your organic certification; though you would only be able to mark the ingredients as organic in the ingredient statement. This could cause confusion with your customers, and if you are not certifying these, does it make sense to certify any of your teas?
3. Work with your flavor supplier (and most likely other flavor suppliers) to create the same tasting flavor but in a certified organic form; knowing this will drive up the cost of goods. Once approved, you will wait 3-12 weeks to get the certification from the flavor company and then another 3-12 weeks to get your flavored tea certified. With a December 27^th deadline, you will need to start working on this change over now and have the new flavors approved by the end of the second quarter.

Regardless of the route you take for your business, the decision is not an easy one to make. This new requirement for certified organic flavors will in some way affect your bottom line and will inevitably cause confusion for consumers and reduce the number of certified flavored teas (and other organic flavored products) available. My recommendation is to seek out support from your flavor houses, industry peers, and industry consultants who specialize in blend development and product sourcing to help your company navigate through these options.  FINAL RULE - FLAVORS

“Flavors The final rule amends the National List to revise the annotation of flavors in § 205.605(a) to change the allowance for nonorganic flavors to require the use of organic flavors when they are commercially available. The listing of flavors in paragraph (a) reads as follows: Flavors—non-synthetic flavors may be used when organic flavors are not commercially available. All flavors must be derived from organic or nonsynthetic sources only and must not be produced using synthetic solvents and carrier systems or any artificial preservative. This rule retains requirements that all flavors must be derived from organic or nonsynthetic sources only and must not be produced using synthetic solvents and carrier systems or any artificial preservative. This rule applies to products in the ‘‘organic’’ and ‘‘made with organic (specified ingredients or food group(s))’’ categories. This rule change does not apply to nonorganic ingredients that may be used in up to 30 percent of ‘‘made with organic’’ products. Due to the number of distinctly different natural flavors and the pace of new product development in flavors, AMS has determined it would be impractical to list individual flavors on the National List to indicate which are commercially available in organic form. AMS has reviewed and agrees with the NOSB recommendation that the annotation for flavors be amended to clarify its use in organic handling. AMS received comments on the proposed rule for amending the annotation.”   ORGANIC CATEGORIES

100% Organic	•       All organic ingredients •       Any processing aids must be organic •       Flavors must be certified organic •       No non-organic ingredients are used •       USDA seal allowed •       Must list organic certification agency •       List ingredients as organic in ingredient statement
Organic 95% Rule	•       At least 95% organic ingredients •       Remaining 5% can be non-organic allowed ingredients •       Flavors must be certified organic when commercially available •       All agricultural ingredients must be organic unless not available •       USDA seal allowed •       Must list certification agency •       List ingredients as organic in ingredient statement
Made with Organic Ingredients 70%/30% Rule	•       At least 70% organic ingredients •       Remaining 30% can be non-organic allowed ingredients or non-organic agricultural ingredients •       Flavors must be natural non-gmo organic compliant •       USDA seal prohibited •       Must list certification agency •       List ingredients as organic in ingredient statement
Products with less than 70% Organic Ingredients	•       Any level of organic ingredients •       No restriction on remaining ingredients •       No certification claims can be made •       USDA seal PROHIBITED •       Only mention organic in ingredient listing