December 17, 2015

TO: JPA Members

FROM: Patricia Faison

JPA Regulatory Update: National Organic Program 2016 Sunset Review; National Organic Program 2015 Sunset Review; Federal Government Funding Bill Released; EPA Publishes Final Rule on Renewable Fuel Standard

National Organic Program 2016 Sunset Review

In March 2015,JPA notified members that during the April 2015 meeting of the National Organic Standards Board (NOSB), the group would review substances on the National List of Allowed and Prohibited Substances (the National List) that would sunset (i.e., their use will expire) in 2016 and 2017. Substances on the National List must be reviewed every five years. JPA has previously submitted comments to the United States Department of Agriculture (USDA) requesting that substances used in the production of organic juice and juice products be maintained on the National List.

Details regarding the following substances subject to sunset in 2016 were shared with members: Egg white lysozyme, L-Malic Acid, Microorganisms, Activated charcoal, Cyclohexylamine, Diethylaminoethanol, Octadecylamine, Sodium acid pyrophosphate, Tetrasodium pyrophosphate, Peracetic acid, Whole algal flour, Glycerin, Triethyl citrate, Ammonium hydroxide, and Polyalkylene glycol monobutyl ether. In April 2015, JPA submitted comments requesting that L-Malic Acid, Activated charcoal, Peracetic acid, Cyclohexylamine, Diethylaminoethanol, and Octadecylamine be maintained on the National List. Cyclohexylamine, Diethylaminoethanol, and Octadecylamine are boiler water additives used for packaging sterilization.

Yesterday, the USDA issued a proposed rule in the Federal Register (80 FR 78150; December 16, 2015), available here, to amend the National List to remove Egg white lysozyme, Cyclohexylamine, Diethylaminoethanol, Octadecylamine, and Tetrasodium pyrophosphate due to a lack of support for the continued use of these substances. The NOSB notes the boiler water additives are no longer necessary or essential for organic processed products. The amendments will become effective on September 12, 2016, if the rule becomes final.

The deadline to submit comments to the USDA related to this proposed rule is February 16, 2016. If you believe JPA should submit comments to the Agency, please provide your detailed input to me by the close of business on January 15, 2016.

National Organic Program 2015 Sunset Review

In August 2015, JPA members were notified that the USDA had issued a proposed rule in the Federal Register advising that several substances on the National List of Allowed and Prohibited Substances (the National List) would be reviewed by the National Organic Standards Board (NOSB) as the substances would sunset in 2015. The NOSB had recommended that fortified (nonorganic) cooking wines - Marsala wine and sherry wine be removed from the National List. According to the Agency, there was a lack of public comments requesting the continued use of Marsala wine and sherry wine for use in organic processed products and as such, these products would be removed from the National List effective December 14, 2015. In addition, the USDA proposed removing the listings for streptomycin and tetracycline (used to control fire blight in apples and pears), for use in organic crop production, that expired on October 21, 2014.

The USDA recently issued a final rule in the Federal Register (80 FR 77231; December 14, 2015), available here, confirming that Marsala wine, sherry wine, streptomycin and tetracycline will be removed from the National List. The final rule became effective on December 14, 2015.

Federal Government Funding Bill Released

According to a press release recently issued by the House Appropriations Committee, the Omnibus Appropriations bill, which provides discretionary funding for the federal government for fiscal year 2016, has been published. The legislation funds agricultural and food programs and services, including food and medical product safety, animal and plant health programs, rural development and farm services, marketplace oversight, and nutrition programs. The bill includes Appropriations legislation and funding through September 30, 2016, the end of the fiscal year. The release of the bill has garnered significant media coverage. Of particular note, according to an article published on, available here, the Appropriations bill does not contain a policy rider that would prohibit states from implementing mandatory labeling laws for foods containing genetically engineered (GE) ingredients. The article states the Grocery Manufacturers Association (GMA) had hoped such a provision would be added to the bill. GMA’s statement is available here.

A summary of the Appropriations related to agriculture can be accessed here. Some of the policy provisions in the summary impacting the food industry are highlighted below.

• “A provision repealing mandatory Country of Origin Labeling (COOL) requirements for certain meat products. The current, flawed requirement is in violation of World Trade Organization trade standards, and would have resulted in trade retaliation by other nations if continued – negatively impacting the U.S. economy by more than $1 billion.”

• “A provision that provides grocery stores and food retailers relief by providing them a year delay or more in complying with the menu labeling regulations.” JPA members were earlier notified that the FDA issued a final rule extending the compliance date for the menu labeling regulation to December 1, 2016 for those covered by the rule.

• “A provision to amend the FDA policy relating to the regulatory treatment of partially hydrogenated oils so that the baking industries and small businesses are not subject to frivolous lawsuits.” In part, the legislation states no partially hydrogenated oils (PHOs) shall be deemed unsafe and no food that is introduced or delivered for introduction into interstate commerce that contains partially hydrogenated oil shall be deemed adulterated due to the presence of PHOs until the compliance date of June 18, 2018. JPA members were earlier notified that the FDA had issued a declaratory order announcing the Agency’s final determination that PHOs are not generally recognized as safe (GRAS) for use in any human food. The FDA established June 18, 2018 as the compliance date to allow, in part, products to be reformulated to remove PHOs or to allow companies to submit a food additive petition.

• “A provision that ensures that the final 2015 Dietary Guidelines for Americans are based on significant scientific agreement and are focused on nutritional and dietary information, and a provision requiring a review of the Dietary Guidelines process to ensure a balanced and scientific process in the future.” JPA previously reported that some concerns have been expressed by the food industry and members of Congress that the Dietary Guidelines Advisory Committee (DGAC) exceeded their scope in developing the Scientific Report, which contained recommendations related to sustainability and tax policy.

• “A provision that ensures further reductions in new school nutrition sodium standards will not take effect until supported by scientific studies.”

A copy of the bill can be accessed here.

EPA Publishes Final Rule on Renewable Fuel Standard

Updates regarding the Renewable Fuel Standard (RFS) have been previously shared with members. The RFS requires transportation fuel to contain a minimum volume of fuel made from renewable materials (e.g., corn-based ethanol) and establishes minimum requirements for production of renewable fuels each year. There is concern that the significant amount of corn diverted by the RFS to fuel production increases the cost of corn for food and animal feed. In June 2015, JPA members were notified that the Environmental Protection Agency (EPA) had issued a proposed rule in the Federal Register to establish annual percentage standards and volume requirements for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuels that apply to all motor vehicle gasoline and diesel produced or imported in 2014, 2015 and 2016.

The FDA recently published the final rule in the Federal Register (80 FR 77420; December 14, 2015), available here.

The final rule:

• Increases the cellulosic biofuel standard from 33 million ethanol-equivalent gallons in 2014 to 123 million ethanol-equivalent gallons for 2015 and 230 million ethanol-equivalent gallons in 2016.

• Increases the required volume of biomass-based diesel from 1.63 billion gallons in 2014 to 1.73, 1.90 and 2.0 billion gallons for the years 2015, 2016 and 2017, respectively.

• Increases the volume of advance biofuel from 2.67 billion gallons in 2014 to 2.88 billion gallons in 2015 and 3.61 billion gallons in 2016.

• Increases the volume of total renewable fuel from 16.28 billion gallons in 2014 to 16.93 billion gallons in 2015 and 18.11 billion gallons in 2016.

The values noted for 2014 represents those volumes of renewable fuel that were actually supplied in 2014. According to the EPA, "This final rule represents EPA's commitment and continued support for steady growth in renewable fuel use."

As always, please contact me with questions or comments.

Patricia Faison

(404) 252 - 3663

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