Organic production is more a way of farming and growing produce than an intellectual property right. The advent of organic certification, however, has given ‘organic’ another meaning which has resulted in benefits not unlike those offered by the European Union (EU) protected food names quality schemes.1 The right to describe a product as ‘organic’, confirmed by using the official EU organic logo, provides products with added-value for which consumers are willing to pay.
Organic food production within the EU is strictly regulated. The word ‘organic’ itself is defined in law and means coming from or related to organic production, which in turn means the use of the production method compliant with the rules established in Regulation 834/2007, at all stages of production, preparation and distribution.2 Which is not in itself a very revealing definition unless you read the principles and rules set out in the Regulation. These are not covered in any detail in this document, which is concerned with aspects of brand protection, but in the document on Growing and Selling: Organic Production.
The Regulation covers the following products3 originating from agriculture, including aquaculture, where placed or intended to be placed on the market:
- Live or unprocessed agricultural products.
Processed agricultural products for use as food.
Vegetative propagating material and seeds for cultivation.
The Regulation also covers yeasts used as food or feed. The products of hunting and fishing of wild animals are not considered to be organic production.
The Regulation applies4 to any operator involved in activities, at any stage of production, preparation and distribution, relating to the above products. Farmers, growers, food processors and others who produce, prepare, store, import from a non-EU country, export to a non-EU country or market organic products must make themselves known to the competent authority and comply with the control system for organic production.5 In practice, this means registering with an approved control body.
A control body cannot be required to maintain an establishment in the country in order to provide services in that country, so in theory any control body approved by a Member State in the EU may provide services in the UK. Austria and Germany, which both required private inspection bodies of organically-farmed products who were approved in another Member State to maintain an establishment in the respective countries in order to provide inspection services there, were held to have failed to fulfil their obligations under Article 496 of The Treaty on the Functioning of the EU.7
Control bodies are subject to annual accreditation and assessment by the United Kingdom Accreditation Service (UKAS) which verifies that the control body is meeting the requirements of European Standard EN450118 (the general standard for certification bodies in the EU). UKAS also assesses control bodies against the control requirements set out in the EU’s regulatory framework. UKAS reports to Defra which, as the competent authority, approves each individual control body on an annual basis.
Organic control bodies certify individual organic operators and undertake regular inspections. Organic operators must comply with the relevant control body’s standards and meet their requirements in order to market products as ‘organic’. These arrangements are designed to ensure that the regulatory framework is robustly applied.
2 The Regulatory Framework
Establish a sustainable management system for agriculture that:
- respects nature's systems and cycles and sustains and enhances the health of soil, water, plants and animals and the balance between them.
- contributes to a high level of biological diversity.
- makes responsible use of energy and the natural resources, such as water, soil, organic matter and air.
- respects high animal welfare standards and in particular meets animals’ species-specific behavioural needs.
Aim at producing products of high quality.
Aim at producing a wide variety of foods and other agricultural products that respond to consumers’ demand for goods produced by the use of processes that do not harm the environment, human health, plant health or animal health and welfare.
This objective is pursued through the establishment of principles for organic production10 and rules of production.11 Genetically modified organisms (GMOs) and ionising radiation are prohibited in organic production.12
The provisions on the labelling of organic products13 set out the requirements concerning the use of terms which refer to organic production, compulsory labelling requirements and the use of the EU organic production logo. The use of the term ‘organic’ and other indications referring to organic production methods, subject to some limited exceptions, are reserved to products which comply with Regulation (EC) 834/2007.
These requirements are subject to a set of official controls which are the responsibility of the competent authority, Defra, to implement and includes measures to ensure compliance, necessary documentation, corrective action and the exchange of information.14
Regulation (EC) 889/2008 lays down detailed rules for the implementation of Regulation (EC) 834/2007. Regulation (EC) 1235/2008 lays down detailed rules regarding the arrangements for importing organic products from third countries and Regulation (EC) 710/2009 contains detailed rules on organic aquaculture animal and seaweed production. Finally, Regulation (EU) 505/2012 sets out, by way of amendment to Regulation (EC) 889/2008, rules on organic production and labelling of livestock feeds, the use of non-organic pullets and requiring that rosemary extract as a food additive must be from organic production.
3 Certified Organic and Labelling
The term ‘organic’, the EU equivalents,16 any diminutives such as ‘bio’ and ‘eco’ and any terms suggesting that a product or its ingredients or feed materials are organic are reserved for products produced in accordance with the principles and rules set out in Regulation (EC) 834/2007 and Regulation (EC) 889/2008.17
These terms may be used when not applied to agricultural products in food or feed or clearly have no connection with organic production.18
In regard to processed food, these terms may be used:
In the sales description, provided that the processed food complies with the general rules on the production of processed food19 and at least 95% of its ingredients by weight of agricultural origin are organic.
In the list of ingredients only, provided that the food complies with the following rules:
- The preparation of processed organic food is kept separate in time or space from non-organic food.20
- The product is produced mainly from ingredients of agricultural origin, added water and cooking salt are not to be taken into account.21
- Only additives, processing aids, flavourings, water, salt, preparations of micro-organisms and enzymes, minerals, trace elements, vitamins, as well as amino acids and other micronutrients in foodstuffs for particular nutritional uses may be used in so far as they have been authorised for use in organic production.22
- An organic ingredient must not be present together with the same ingredient in non-organic form or an ingredient in conversion.23
In the list of ingredients and in the same visual field as the sales description, provided that:
- The main ingredient is a product of hunting or fishing.
- It contains other ingredients of agricultural origin that are all organic.
- The food complies with the rules set out in paragraph b) above.
The list of ingredients shall indicate which ingredients are organic. In paragraphs b) and c) above, references to the organic production method may only appear in relation to the organic ingredients and the list of ingredients must include an indication of the total percentage of organic ingredients in proportion to the total quantity of ingredients of agricultural origin. The terms and the indication of percentage must appear in the same colour and be of identical size and style of lettering as other indications in the list of ingredients.
In summary, the use of the term ‘organic’ depends on the level of content of organically produced ingredients in the product. Where 95% or more of the content of agricultural ingredients has been produced organically the product can be described as organic. Where less than 95% of the content has been produced organically, the term ‘organic’ can only be placed in the list of ingredients on the product label or in accompanying documentation against those ingredients produced organically.
Where a product’s main ingredient derives from hunting or fishing, and so cannot be described as organic,24 but contains organic ingredients, provided it complies with the rules on the production of organic food in relation to separation preparation, the use of additives etc., and no organic ingredient is present together with the same ingredient in non-organic form or an ingredient in conversion, the organic ingredients in the product can be described as organic on the ingredient list in the same visual field as the sales description.
Where the term ‘organic’, any diminutives such as ‘bio’ and ‘eco’ and any terms suggesting that a product or its ingredients or feed materials are organic are used:
The code number of the responsible control authority or control body25 to which the operator who has carried out the most recent production or preparation operation is subject, must appear in the labelling.
The EU logo26 must appear on the packaging of pre-packaged food.
Where the EU logo is used, an indication of the place where the agricultural raw materials of which the product is composed have been farmed, must appear in the same visual field as the logo and take one of the following forms:
- ‘EU Agriculture’, where the agricultural raw material has been farmed in the EU.
- ‘non-EU Agriculture’, where the agricultural raw material has been farmed in third countries.
- ‘EU/non-EU Agriculture’, where part of the agricultural raw materials has been farmed in the Community and a part of it has been farmed in a third country.
The indication ‘EU’ or ‘non-EU’ may be replaced or supplemented by a country in the case where all agricultural raw materials of which the product is composed have been farmed in that country. Small quantities by weight of ingredients may be disregarded provided that the total quantity of the disregarded ingredients does not exceed 2 % of the total quantity by weight of raw materials of agricultural origin.
The indication ‘EU’ or ‘non-EU’ must not appear in a colour, size and style of lettering more prominent than the sales description of the product.
In considering who is the operator for the purposes of paragraph a) above, Defra state:
For these purposes, we interpret “operation” as meaning a process that physically changes the product such as manufacture, processing and packaging/ labelling. It would not cover activities where the product is not physically changed such as storage and wholesaling.27
*The logo is prescribed by Regulation (EC) 889/2008, Annex XI
The use of national and private logos in the labelling, presentation and advertising of products is permitted.28 In practice, whether or not a control body logo is used will depend on the nature of the contract between the control body and the operator, the former may require the operator to display the logo in a particular manner. For example, Soil Association Certification Ltd require their logo to be displayed, whereas Organic Farmers & Growers Ltd do not. A selection of control body logos follow.
Biodynamic Agriculture Association
Organic Farmers & Growers Ltd
Organic Food Federation
Quality Welsh Food Certification
Soil Association Certification Ltd
The indication of the code number of the control authority or control body29 must:
Start with the acronym identifying the Member State as referred to in the international standard for the two letter country codes under ISO 3166, codes for the representation of names of countries and their subdivisions.
Include a term which establishes a link with the organic production method.30
Include a reference number to be decided by the competent authority of the Member States.31
The code number must be placed in the same visual field as the EU organic logo where used.
The indication of the place where the agricultural raw materials of which the product is composed have been farmed32 must be placed immediately below the code number.
The term for the UK in ISO 3166 is GB so this has to be the first element of the UK codes. The codes for control bodies based in the UK as follows:
Biodynamic Agricultural Association GB-ORG-06
Global Trust Certification Ltd GB-ORG-16
Irish Organic Farmers and Growers Association GB-ORG-07
Organic Farmers & Growers GB-ORG-02
Organic Food Federation GB-ORG-04
Organic Trust Limited GB-ORG-09
Quality Welsh Food Certification GB-ORG-13
Scottish Food Quality Certification Ltd GB-ORG-17
Soil Association Certification Ltd GB ORG-05
4 Offences and Penalties
It is an offence to contravene the labelling provisions of Regulation (EC) 834/200733 and any person convicted of an offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale.34
3 Ibid., Article 1(2)
4 Ibid., Article 1(3)
5 Ibid., Article 28
6 Which prohibits restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State.
8 European Co-operation for Accreditation, EA Guidelines on the Use of EN 45 011 and ISO/IEC 17021 for Certification to EN ISO 3834, EA-6/02, 16 July 2007, rev 01
9 Ibid., Article 3
10 Ibid., Articles 4 to 7
11 Ibid., Articles 8 to 22
12 Ibid., Articles 9 and 10
13 Ibid., Articles 23 to 26
14 Ibid., Articles 27 to 31
16 Regulation (EC) 834/2007, Annex
17 Ibid., Article 23(1)
18 Ibid., Article 23(2)
19 Ibid., Article 19
20 Ibid., Article 19(1)
21 Ibid., Article 19(2)(a)
22 Ibid., Article 19(2)(b) and 21
23 Ibid., Article 19(2)(d)
24 Ibid., Article 1(2)
25 Ibid., Article 27(10)
26 Ibid., Article 25(1)
27 Defra, Guidance Document on European Union Organic Standards, January 2010, para 84
28 Ibid., Article 25(2)
29 Ibid., Article 24(1)(a) and Regulation (EC) 889/2008, Article 58
30 Ibid., Article 23(1) and Regulation (EC) 889/2008, Annex XI, Part B(2)
31 Regulation (EC) 889/2008, Annex XI, Part B(3)
32 Regulation (EC) 834/2007, Article 24(1)(c)