Strengthening Organic Enforcement (SOE) – Top 8 Questions about Uncertified Operations and Missing the March 19, 2024 Deadline

Last week, on March 19, 2024, the “Strengthening Organic Enforcement” (SOE) final rule, published in the Federal Register a year ago, reached its “implementation” date. The rule introduced significant updates and changes to the organic regulations administered by the USDA’s Agricultural Marketing Service (AMS), including rules related to certification for a broader range of entities and activities than ever before. Businesses have been mobilizing over the last year to ensure SOE compliance across their operations and supply chains. 

Below, SCS addresses some of the most frequently asked questions from organic food manufacturers, handlers, ingredient suppliers, importers and exporters regarding what happens if businesses missed the SOE deadline.

FOOD MANUFACTURERS AND BRAND OWNERS 

1. What should I do if my company is sourcing from suppliers that were not certified by March 19?

   Notify your suppliers that your ability to continue purchasing organic products from them depends on the successful certification of their products.  At the same time, develop a back-up plan in case your suppliers are unable to comply. For instance, it would be helpful to identify alternative, compliant suppliers that can meet your company’s needs.

2. What if I keep sourcing from uncertified suppliers after March 19?

   Companies that continue to purchase from uncertified suppliers must recognize the consequences to their business, including potential business disruptions, and to the organic integrity of their supply chain. In accordance with NOP 205.100, all USDA Organic certification bodies, including SCS, will be required to issue a Notice of Noncompliance to operations that are sourcing from uncertified, non-exempt suppliers. We encourage any companies that have questions to get in touch with SCS as soon as possible.

3. Can I continue to source from uncertified suppliers while they work to become certified?

   In some cases, yes; however, SCS considers several factors when determining whether to allow continued sourcing from uncertified operations that are in the process of becoming certified. First, SCS will need to verify:

   1. That the operation has applied for certification;
   2. That the operation was previously exempt or excluded from certification; and 
   3. Whether or not the product is otherwise commercially available from a certified supplier.

HANDLERS, BROKERS, TRADERS, AND DISTRIBUTORS

1. Will my operation be required to undergo certification to buy and sell organic products, even if we don’t open the packages or take possession of the products?

   In most cases, yes. Handlers, brokers, traders, and distributors will be required to undergo certification, except for those that distribute only organic products packaged and sealed for final retail sale. Handlers, brokers, traders, and distributors of non-retail products — as well as any operation that imports or exports organic products — are now required to be certified as of March 19, 2024.

INGREDIENT SUPPLIERS, HANDLERS, BROKERS, TRADERS, AND DISTRIBUTORS

1. How long will it take for my operation to become certified if my operation has missed the March 19 deadline?

   From start to finish, organic certification typically takes between two to four months. The sooner an operation can begin the process, the less disruption to business it will experience. To begin the organic certification process, contact SCS Director of Sales, Ned Halaby at [email protected] and inquire about expediting your certification.

2. What happens if my operation was not certified by March 19, 2024?

   Continuing to buy, sell, and trade uncertified products as organic after March 19, 2024 would be in violation of NOP 205.100. Unless you qualify for an exemption, your customers will be at risk of non-compliance if they continue to purchase organic products from your uncertified operation. If your operation remains uncertified after March 19, 2024, your customers may choose to no longer purchase organic products from your company to ensure that their organic products remain in compliance. While some additional leniency may be afforded to operations that can demonstrate they are in the process of becoming certified, this will be decided by your customer and their certifier. SCS cannot guarantee that your customers will continue to purchase from you while you work towards achieving certification. Most significantly, disregarding the requirement to become certified while still marketing your product as organic will eventually lead to your operation being subject to a civil penalty.

3. Will my certification be denied if I continue to sell products as “organic” after March 19?

   Although SCS will issue a Notice of Noncompliance in accordance with NOP 205.100 if your operation continues to sell products as “organic” after March 19, in most cases SCS may not escalate that specific Noncompliance to Denial of Certification if your operation is making a sustained effort to become certified, subject to further guidance from USDA AMS. Additionally, if your operation is not currently under sanction by another certifier, is not otherwise compromising organic integrity, and was eligible for an exemption or exclusion prior to March 19, SCS will not escalate to Denial of Certification. In these cases, your operation will need to resolve any issues that arise during the audit and complete your certification. If your operation is denied certification for any reason, SCS will notify NOP and inform your operation that you must immediately discontinue transacting products as “organic.”

ALL PARTIES INVOLVED WITH IMPORTS AND EXPORTS

1. Will imports and exports be disrupted after March 19, 2024, if neither the importer nor exporter are certified?

   Customs and Border Protection (CBP) will likely take issue with shipments not covered by a NOP Import Certificate, which requires both the importer and exporter of the product to be certified. Operations should be prepared for shipments to be rejected after March 19 if they are not accompanied by a NOP Import Certificate issued by the certifier of the exporting organization.

Still have questions or concerns about your operation’s certification needs? Please reach out to SCS Director of Sales, Ned Halaby: [email protected]. Also, be sure to check out our latest on all things SOE:

Strengthening Organic Enforcement (SOE) Summary: Top Seven Changes to Watch as 2024 Deadline Nears

SOE Organic Fraud Prevention – What Every Business Needs to Know

Strengthening Organic Enforcement | Frequently Asked Questions