On March 19, 2024, the National Organic Program’s (NOP) new Strengthening Organic Enforcement rule was implemented after a 14-month educational effort, and the results have been very positive, according to the NOP’s Dr. Jennifer Tucker.

Tucker, who is deputy administrator of USDA NOP, told OPN Connect on April 5 that she is “very pleased” with the level of compliance. She noted that in the first three months of 2024, NOP processed 755 new handler certifications compared to 207 in the same time frame in 2023. “That tells us a lot of folks are getting the message,” she said. “To go from about 200 to 750 in year-over-year growth tells us we are in the stage of acceptance.”

Dr. Jennifer Tucker, Deputy Administrator, National Organic Program

Tucker said that anytime there is a huge rule change—and she said the SOE regs definitely fit that descriptor—the industry goes through specific stages prior to compliance. “First there is a grieving phase, then a bargaining phase, and finally acceptance,” she said, adding that not everyone has reached that final stage yet. “There are still folks working through that process, and it will take time, but I am pleased with the progress.”

For the past 14 months, NOP officials have been spreading the word about the new regs by holding webinars and speaking at industry events. Tucker believes that the vast majority of industry players have gotten the message, which basically was that virtually everyone on the supply chain that handles organic product must be certified. There are exceptions, but they are few and far between. She added that in almost all cases, there are two ways to become compliant: become certified or stop handling organic produce. She knows that some handlers—most likely very small players—have stopped handling organic product because of the perceived difficulty and/or the cost of achieving certification.

Tucker knows that there are also many companies still in the process of achieving certification as many certifiers are at capacity. Currently, certifiers are reporting that it is taking anywhere from two to six months from application to certification.

The number of new handler certifications is an important barometer, but it is not the only measure by which to gauge compliance. Tucker said another important data point is the number of valid import certificates that are accompanying loads of organic product being shipped to the United States. The new SOE rules require all organic imports to the U.S. market to be declared as organic and be associated with an NOP Import Certificate, typically generated by the certifier. This rule was designed to improve traceability and oversight of organic imports into the United States. The SOE rule also requires all importers and exporters to be certified.

“We are seeing over 80 percent compliance, which is very good at the beginning of implementation of any new rule,” said Tucker, adding that in most cases an invalid certificate is reflective of procedural issues, not that the product itself is mislabeled.

Of course, there are also companies that are either ignoring the rules or, inexplicably, uninformed. “We have a standardized escalation process to deal with companies not in compliance,” said the NOP administrator. “The first step is a warning letter.”

"A lot of folks are getting the message. To go from about 200 to 750 [new handler certifications] in year-over-year growth tells us we are in the stage of acceptance.” - Dr. Jennifer Tucker

Tucker revealed that the NOP has mailed out about 400 warning letters in the first few weeks of implementation. The letter does not call for action on the part of the offending company but informs them of their obligations under the new rules. That letter is generating a lot of responses, with many of those companies reporting that they are in the process of achieving certification but haven’t received it yet.

The second step of compliance is a letter demanding a response. NOP wants to make sure companies handling organic produce are either certified or close to it. Tucker said there will continue to be a lenient approach while companies work through the process.

“A cease-and-desist notice is another legal tool at our disposal,” she said, adding that the next step involves the imposing of civil penalties.

Dr. Tucker said she wanted to give a shout-out to the customs broker community for being an excellent ally from early on in the SOE implementation process. She revealed that NOP worked diligently to inform this group of the new regulations through webinars and other outreach programs. She said customs brokers have been “pushing compliance” and are often making sure that the loads have the required import certificate.

Retail distribution centers were one of the business categories that offered early resistance to the organic certification requirement. Retail stores are not required to be certified, and previously, many supermarket warehouses were not certified. As a group, retailers appeared to be in the “bargaining” stage of acceptance for quite some time. An exemption in the new SOE rules allows for a handler to move organic product as long as all of it is enclosed in sealed, tamper-evident packaging. To avoid the need for certification, some retailers were exploring the option of requiring all suppliers to provide all their organic produce in such packaging.

But Tucker said shifting the tide was retailers’ realization that if they handled such bulk products as organic bananas and watermelons, two items that don’t lend themselves to tamper-proof packaging, they would have to be certified. She indicated that many retail distribution centers have achieved organic certification or are in the process of doing so.