Organic food products face new regulatory challenges


Naturalness is associated with simplicity. Foods that are simpler and less processed are perceived to be “better”. This may be one of the reasons why the demand for organic certification is on the rise. At the same time, the route for a food business operator (“FBO”) to achieve such certification is becoming increasingly complicated.

The concept is not as new it seems. As long ago as 2007, the EU set out the principles and aims of organic production and how organic products must be labelled in Regulation (EC) 834/2007. Careful regulation helps to maintain integrity and consumer trust. That early Regulation is still in place, but over time, detail has been added by a range of implementing acts on production, distribution and marketing[1] (together the “EU rules”). The EU rules are important as research shows that consumers increasingly want to buy organic – both out of concern for health, the environment and animal welfare.

Organic logo

All food products that are produced, pre-packed and sold in the EU as organic must display the approved EU organic logo (“Logo”)[2]. The Logo can optionally be used on non-prepacked organic products and third country imported products that meet the EU requirements on the import of organic goods (although some products cannot qualify, such as cosmetics and food from hunting and fishing).

The Logo can only be used on food products where at least 95% of the agricultural ingredients are organic. The remaining 5% can originate from non-organic sources but is also subject to control. The same ingredient cannot be present in both organic and non-organic form. When used, there are strict rules about the colour, font and style of the Logo.

An FBO can evidence its eligibility to use the Logo by obtaining certification from an independent organisation confirming that its food product is in compliance with the requirements under the EU rules. The Soil Association is one of a number of approved certification bodies for organic products in the UK.

Although achieving certification is demanding (in order to maintain the integrity of the claim), things are set to become more complicated for UK based FBOs. This is partly due to planned changes by the EU, and partly due to Brexit.

Changes to the EU rules

A key aspect of the organic claim is the limited use of fertilisers, herbicides and pesticides. Other intervention is prohibited, such as ionisation or using animal product where the animals have been given hormones or more than a very limited permissible range of antibiotics. In addition (unlike some third countries), genetic modification is prohibited.

Currently, in keeping with the close alignment with “naturalness”, all types of natural flavourings are permitted in organic food products, as they are not regarded as agricultural ingredients and so are not counted for the purposes of calculating the 95% requirement. From 1 January 2021, however, flavourings will be regarded as agricultural ingredients and the maximum amount of non-organic flavourings permitted in an organic product will be 5% by weight of the product.

In addition, where a product claims a “natural source” ingredient (e.g. “natural flavouring”), such a general claim would not be permitted. If the claim is specified as “natural lemon flavouring”, and at least 95% of the “natural lemon” is derived from a lemon, then that product would be able to carry the Logo. If in fact the claim is not for a specific natural ingredient but, for example, for strawberry extract, then the source must be 100% natural extract.

These changes may require some organic food products to be reformulated.

Brexit impact

There is a further change that may influence the approach to any reformulation. Following the UK’s withdrawal from the EU, the existing EU rules will continue to apply during the transition period. However, on 1 January 2021, that “equivalence” will end unless an agreement has been reached on the future relationship of the UK and the EU. The impact of failure to reach agreement will be much wider than the use of the Logo – but the outcome illustrates these wider issues.

As noted, an FBO requires its organic product to be independently certified. Whilst experts have been mutually recognised across the EU, this is likely to end after the transition period.

Thereafter, the EU will only recognise an EU approved independent body. This means that a UK exporter to the EU will be unable to use the Logo without an EU approved independent certifier and conversely, the Logo will no longer be able to be used in the UK, unless the UK recognises the EU certifying body.

This is, of course, unless an agreement is reached to continue the mutual recognition by the EU and UK of UKAS and EFSA approved organisations. In the case of the Soil Association, an application for recognition by the EU has been prepared but could not be submitted until formal exit. It will be interesting to see the outcome of such application. Similar applications will need to be made by other certifying bodies which will have far reaching implications for all food products and ingredients that require safety certifications.

The outcome of negotiations with the EU on how to approach the legislation will decide whether the new EU rules will apply in the UK next year, but for FBOs, decisions on reformulations and re-certification will need to be made much sooner.

[1] Regulation (EC) 1235/2008, Regulation (EU) 2020/25, Regulation (EC) 889/2008, Regulation (EC) 203/2012 and Regulation (EC) 710/2009.