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Organic Regulation – state of play of EU regulation review in a post-Brexit context

Date Published: 22/05/2017

Organic regulation

Organic food production is a specified scheme that delivers a regulated agro-ecological approach to food and farming with a clear demand for organic products in the market. This is one of a series of papers that will be presented by OF&G outlining our thoughts on the future direction and priorities for the organic sector, businesses and organisations in the UK.

Taken together, they are intended to provide a focused account of the preferred post-Brexit organic policy, in the context of and part of a much wider post-Brexit policy for food and farming. OF&G invite other interested organisations to engage in this dialogue and to review and propose amendments to enable an honest and pragmatic review and provide a consensus position on the future direction of the organic movement in the UK. 

Regulation since 1991, before then nobody was interested!

The organic sector has been regulated by the EU since 1991, before then organic standards had been developed by some governments, private organisations and NGOs. The small, developing market had been more or less informally regulated for many years. Since then the regulation was updated and the current regulation came into force in 2009 (Regulations 834/07 and its implementing rules). In common with all other EU member states, Defra in the UK fully implemented the regulation, replacing pre-existing standards with the EU regulation, linked closely to the EU Commission and its responsibilities. In 2013, only four years after implementation, the Commission initiated a review of Regulation 834. Negotiations on the proposals have been continuing between the three EU Institutions – Commission, Council and Parliament – for more than three years. This is a record breaking dossier in EU terms, it has absorbed a huge amount of resource – human and financial with costs running into millions.

Since 2009 all European legislation is mandated to be brought in line with the requirements of the Lisbon Treaty and the organic regulation is no exception. This undoubtedly prompted the process of review, although the personal interests in organic farming of the former EU Agriculture Commissioner, Dacian Ciolos, also played a part. Commissioner Ciolos committed the outcome of the review to be a new regulation with added value (over and above the current), one that would improve the opportunity for and the integrity of organic food and farming in Europe. It was acknowledged at the outset that with the implementation of a new regulation there may be some short term decline in the organic food sector, but the long term prospects were seen to be good. While many of the aspirations were well received the proposed policy framework to deliver the outcomes were ill informed and poorly developed.

The organic regulation has been and will continue to be a fundamental element for the policy initiatives introduced through the Common Agricultural Policy (CAP) during its successive reforms. The development of the organic market and the delivery of public goods as benefits of the organic system of production is integrally linked to the legislative framework provided by the EU regulation and implemented in the UK through the Organic Products Regulations (Statutory Instrument). Papers produced by Lampkin et al for the Land Use Policy Group and by Lampkin & Padel for Defra provide a comprehensive assessment of the context and justification for the current organic farming policy, whilst the Organic Farm Management Handbook provides good summaries of the current policy relating to organic regulation and farm support in the context of EU policies.

Hard to negotiate an agreed text

It has proved very hard to negotiate an agreed text that brings real added value. Many versions of the text have been put forward by successive Presidencies and amended in consultation with Council, Commission and Parliament. IFOAM EU has devoted significant resources to make detailed proposals for revision to the text and has argued strongly on the sector’s behalf.

The dossier is now with Malta until July 2017, when the presidency transfers to Estonia. Malta is the sixth Presidency to have responsibility for the proposed regulation. The Commission, however, has the final responsibility to bring a new regulation forward. The Presidency (currently Malta) has to maintain the mandate to negotiate, otherwise the proposal for the new regulation must be withdrawn.

The Commission and Parliament are both keen to see the Maltese mandate continue and the dossier to be passed to the Estonian Presidency. Many members of the Council (member states) would prefer to see the proposal withdrawn. On 12th December 2016 there was an opportunity, at the Council meeting, for a clear ‘no’ to be expressed. In the event, no large northern European member state (i.e. Germany, France or UK) was bold enough to do that. It was agreed, however, to have a period of reflection over Christmas and the New Year to consider the possibility and implications of continuing with the current regulation. Only the Czech Republic clearly stated that withdrawal would be preferable at that Council meeting. Any reflection that took place over the holiday seemed to have no impact and in the New Year the Maltese presidency continued to work on the proposal as previously presented.

Red lines and incoherent text mean withdrawal is the only way

There are four key issues over which there has been substantial disagreement, amongst all three institutions, that continue to stop progress towards agreement. In addition to these key red lines, there are numerous other areas where the current proposed Presidency text (19th May 2017) remains incomplete, and/or has errors, inconsistencies and contradictions. Although the focus has continued to be on the red lines, these other shortcomings mean that withdrawal would be desirable.

The red lines concern:

  • Presence of unauthorised substances
  • Frequency of inspections
  • Out of soil production
  • Seed

Detailed analysis and assessment by IFOAM EU on behalf of the sector has been completed at every step. The latest analysis should be referred to for detailed information. It also includes specific proposals for alternative or amended text.

Two possible outcomes of the regulation review

There are only two possible outcomes of the review:

1. A new regulation is finally agreed – implementing rules will be agreed over the next 18 months and the regulation would come into force in 2019 at the earliest;

2.No new regulation is agreed – continue to 834/2007 and its implementing rules while considering the areas where the review made good proposals and incorporate these along with other outstanding issues within a new Lisbon Treaty compliant regulation.

If a new regulation is agreed, then it will be necessary to:

  • Assess the consequences of the political agreement regarding the red lines, and the shortcomings of the text in other areas (e.g. many: compliance not equivalence, etc)
  • Support the process to make the new regulation better (good enough to encourage development of the organic sector) including the agreement of coherent implementing regulations where there will be many critical issues;
  • Maintain a good working relationship between IFOAM EU and the Commission (as well as Council and Parliament).

If no new regulation is agreed, then it will be necessary to:

  • Ensure the organic regulations are compliant with the requirements of the Lisbon Treaty
  • Ensure that the outstanding issues that had not been resolved since the implementation of regulation 834/2007 and its implementing rules are addressed (notably greenhouse/horticulture and poultry), based on EGTOP reports and other sector information;
  • Evaluate the positive outcomes of the review (Group Certification, Pullet rearing, harmonised rules and procedures for non-authorised substances etc.).
  • Maintain a good working relationship between IFOAM EU and the Commission (as well as Council and Parliament) with a view to making the best of the implementing rules.

It is the opinion of OF&G that while there is clearly a need to review and amend the organic regulation it is felt that this is best achieved by amending and improving the current regulation which is it felt, while not perfect, has very largely been successful and is now well tested by the sector. This is in preference to adopting an entirely new regulation with the inherent risks associated with that along with the significant resources needed to implement it effectively. These resources would otherwise be diverted to other more productive areas that would aid the development of organic food production in the UK.

Only the EU Council (member states) can halt the review

It is OF&G’s view, therefore, that the position taken by the EU Council in the Trilogue on 31st May 2017 should be for withdrawal. The Commission is doing all it can, with the support of the European Parliament, to keep the process alive. There is great political pressure to achieve this neither wish to lose face, which would be the inevitable consequence of withdrawal. However, if the Special Committee on Agriculture (SCA) fails to give a mandate to the Maltese Presidency at its meeting on 29th May 2017, withdrawal at the Trilogue on 31st May would seem inevitable. While Germany, UK and France will not be the first to ask for withdrawal for internal political reasons (neither at the SCA nor the Trilogue), there is a possibility that they would support an initiative for withdrawal from elsewhere. The Visegrád group of countries (Czech Republic, Hungary, Poland and Slovakia) could put forward a joint position for withdrawal. There is a precedent for this, whilst the outspoken views of the Czech Republic at the December 2016 Council meeting also suggests that this might be achievable. With such a proposal on the table OF&G would want the UK Government to support this.

UK organic regulation and Brexit policy for organic

The policy for organic in the British Isles will form part of an overarching food, farming and health policy. Links with the devolved nations and their own policies will be crucial to developments in England and in the UK as a whole. Everything, as we know, is still to be resolved including trading arrangements and access to the markets in Europe and worldwide,

Sustain UK have proposed an overarching policy framework which has the support of the it’s membership which includes OF&G. Based on eight clear principles, the farm and land use policy would include:

  • Land Management Support Scheme (LMS)
  • Sustainable businesses and rural development support
  • Free advice and support for farmer-to-farmer advisory networks

It sets these specific proposals in the context of the wider policy for ‘better’ food and agro-ecologically based farming, with ‘public money for public benefits’ at its core. It is argued that Government policy on health and diet, standards and regulations, R&D and innovation, protection of workers, food procurement and better trading relations must all be linked.

Maintaining consumer confidence and ensuring the absolute integrity of organic food will depend firstly on complying with the EU organic regulation, whatever the outcome of the current review. In addition to the policy on regulation, discussed in this paper, other policy measures are also extremely important for the organic sector to increase, even modestly to 10%. These include support for conversion and maintenance, infrastructure financing, promotion, advice and extension. These will be discussed in future papers.

Currently, as members of the EU, the EU organic regulation is implemented in English (and UK) law through the Organic Products Regulations. As yet, there is no clarity on what will be the procedure for drafting the Great Repeal Bill and the way in which European regulations will be imported into new English (and UK) law. But absolutely fundamentally, for the reasons set out above, the UK requires a legally binding organic regulation based on current EU requirements that enables continued trade with the EU and others.

It will be necessary for Defra to resolve how the necessary advice and guidance to the Commission provided by the EU based Expert Group on Organic Production (EGTOP) and the Committee on Organic Production (COP) is provided to UK Ministers in the future when the UK leaves the EU. Existing UK groups such as the Control Body Technical Working Group, the U.K. Organic Certifies Group and the English Organic Forum (+ the Scottish Organic Forum and Welsh Organic Forum) could be built on and supported by Government to aid the development of a coherent and ambitious organic policy framework, including that for regulation and control, thus minimising the Defra resource required.

At the present time, Defra is the Competent Authority as defined by the EU. The responsibilities of the Competent Authority currently include the granting of exceptional permissions for organic operators to perform animal mutilations, use non-organic vegetative propagating material, approve shortened conversion periods, and provide for catastrophic circumstances (Article 47). These specific responsibilities for exceptional permissions were at least in part historically dealt with by the Control Bodies, but following a recent European audit by the EU Food and Veterinary Office (FVO), this competency was returned to Defra. A post-Brexit policy could return these competencies to the Control Bodies, subject to a detailed assessment of the FVO report and the availability of sufficient resources from government.

The EU Commission holds the responsibility for import authorisations, and by October 2017 the TRACES system will be fully operational and electronic Certificates of Inspections will be required. In the past Defra were responsible for issuing import authorisations, but there is no need to repatriate this since EU Commission authorised imports from 3rd countries would be acceptable to the UK. However, this may depend on the outcome of trade negotiations, whilst there is also the possibility for direct imports authorised by Defra, provided that this is deemed compliant by the EU Commission. The Port Health Authorities will play an important role, sufficient resources will need to be deployed to avoid disruption to organic supply chains.

Development of the organic regulation in the UK

There is potential to enhance the implementation of the basic EU regulation and to introduce new or better interpreted standards and organic principles. Areas, which have hitherto been under control of the European Commission, will be repatriated. There is, therefore, an opportunity to deliver a pragmatic, business focused approach to the implementation of the regulation for organic food and farming, while strengthening the integrity of the organic supply chain. This is in line with an aspiration to grow the production base and the market to 10% (see other papers). Furthermore, whether or not the new regulation is implemented, there are a number of key new provisions from the outcome of the European review that should be incorporated into the UK standard. These include such things as:

  • Group Certification
  • Pullet rearing
  • Harmonised procedures for unauthorised substances
  • Some fibre products are included within scope of the regulation

The exceptional permissions included in the regulation should be examined, and in line with suitable policy for increasing production and resolving technical barriers, national rules could be introduced to further reduce or remove these. There may, also, be practical considerations that mean that certain practises that are not naturally aligned to organic principles but nevertheless have strong agronomic justification must remain available to organic producers. These would need to be periodically reviewed in light of developments but would remain until alternatives are readily available. Addressing issues in this pragmatic and realistic way would allow organic in the UK to move forward. The current position of IFOAM EU on the derogations (and other organic regulation issues) should be referred to for extensive additional detail. It is in line with the position of the organic sector in the UK, however this situation may change.

Key examples of success (while not an exhaustive list) from a well-developed organic regulation in the UK include:

  • Harmonised procedures and requirements for non-authorised substances, as per proposals from IFOAM EU and subject to what happens to this critical red line in the EU. However the possible requirement for a review on decertification threshold for pesticides in the future, with the possibility of introducing legislation, should not be included;
  • Increasing the UK supply of organic fruit and vegetables (currently, as with non-organic, heavily dependent on imports);
  • Supplying more (even most) of the livestock feed from UK farms, enough for the number of organic livestock (dairy, pigs and chickens) in the UK (currently heavily dependent on imports);
  • Reducing the non-organic processing and production inputs to organic food and farming, subject to the satisfactory availability and/or development of alternative techniques and organic products;
  • Increasing the proportion of ‘organic seed’ used (defined as once grown on an organic farm – a not very onerous requirement) and the development of an effective organic seed breeding programme (more difficult);
  • Including non-food products (cosmetics and textiles) within the scope of the regulatory framework to stop greenwash and ensure integrity

Suitable accreditation, to international norms, of the annual inspection, verification and certification of organic supply chains carried out by Control Bodies would have to continue. However the International Organic Accreditation Service (IOAS) should be enabled to carry out accreditation alongside UKAS. Having two providers will encourage the provision of better and more competitive services with regard to competitive pricing and the specific organic aspects of accreditation.

OF&G, believe that as part of a wider Organic Action Plan key performance indicators should be agreed to measure the success or otherwise of the regulation. This would include an honest appraisal of consumer attitudes to the organic regulation and the expectations of what it delivers. It is OF&G’s opinion that many of the purchasing motivations of consumers go beyond the scope of the regulation and should be addressed through structural initiatives and peer-to-peer innovation.

OF&G believe that many of the challenges faced by the organic movement are a consequence of the lack of critical mass making structural change difficult. The regulation, while setting a genuine and tangible base line can, also, act as a straight jacket. The organic movement in the UK must expand and develop if it is to make a meaningful contribution to the environmental and socio-economic challenges we face. To achieve this it must reach the critical mass necessary to address many of its key integrity issues. Any regulation must help facilitate this.

To achieve a strong position within the agricultural sector, the UK organic movement must be dynamic and innovative and this must be because of the support provided by the regulation not in spite of it.

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