Yesterday the news broke that Jessica Alba’s Honest Company and Hain Celestial’s Earth’s Best were under fire with a lawsuit from the Organic Consumer’s Association. The lawsuit claims the companys’ baby formula products were falsely labeled “organic” and that they contain ingredients prohibited under the Organic Food Production Act of 1990 (OPPA).
The lawsuit against The Honest Co. alleges their Premium Infant Formula contains 11 substances prohibited by federal law from organic products.
The story caused quite a stir but also raised a number of questions.
How were both products able to be approved by their third-party certifying agency, QAI if they didn’t meet organic standards?
If the products indeed were in violation of organic standards, why wasn’t the third-party certifier, QAI named in the suit?
Were the products reported to the USDA, and, if so, what was the outcome of that complaint?
I contacted the Organic Consumer’s Association to ask them these very questions, and the answers that I received shed a bit more light on the lawsuits.
According to current law under the National Organic Program, certain non-organic ingredients can be added to an organic product, as long as the total organic content is above 95% and the ingredients are on a list of approved substances. Additionally the added ingredients can’t be subjected to ionizing radiation, contain GMOs, or have been processed with sewage sludge.
However, the list of approved substances contains a line item stating that you can add “Nutrient vitamins and minerals, in accordance with 21 CFR 104.20, Nutritional Quality Guidelines For Foods.” The chemicals in question are not specifically on the approved substances list, but were allowed in the products under this clause.
For years the OCA has been petitioning the National Organic Standards Board to close this loophole and specify exactly which vitamins and nutrients can be added to a product. The OCA asserts that over the years certain substances used in these baby formulas have been petitioned to be listed specifically on the approved substances list, but rejected. However, these chemicals are still being allowed in organic products under the “vitamins and nutrients” clause. The OCA concludes that if these substances have been rejected to be listed as approved substances list, they shouldn’t be allowed in organic products, period.
Alexis Baden-Mayer, the Political Director at the OCA says that “Of course, the larger context of this lawsuit is that the USDA National Organic Program isn’t instructing certifiers like QAI to block the use of these unapproved synthetics, even though it has acknowledged the problem and begun to move to correct it. In 2012, the NOP said that ‘vitamins and minerals may continue to be added to organic products while the Department continues to clarify which additional nutrients may be added to organic products.’ (Source)”
Baden-Mayer says the baby formulas were not reported to the USDA. “It would be futile, given the fact that the NOP has said that it won’t enforce against the use of synthetic nutrients until it completes it’s rule making process. We do hope that these lawsuits remind the NOP of the importance of quickly finishing that process.”
The case, then, on a legal level, seems not to be a matter of products being in violation of current national organic standards, but a matter of the false advertising.
“The NOP isn’t ready to take action yet or issue new guidance to certifiers on which synthetic nutrients to allow, but that doesn’t absolve Honest and Hain of the responsibility to be truthful,” says Baden-Mayer. “For example, Honest states on its label that its products are ‘nutritionally complete from quality ingredients sourced from trusted organic farms.’ And, Hain’s Earth’s Best label, says its infant formula ‘meets all FDA requirements for infant nutrition with the added benefit of being organically produced.’ These statements imply that the nutrients in the formula come from organic ingredients grown on farms, when in fact they come from non-organic ingredients that are synthetic.”
”But, even if each of the synthetic ingredients Hain and Honest are using were approved for use in organic food by the NOP,” Baden-Mayer continues, “they would still be unlawfully deceiving their customers with the claims they are making about organic nutrition. The nutrients in their infant formulas are not organic. They are synthetic. Consumers should not be led to believe otherwise.”
So, should you be freaking out about the Honest Company and Earth’s Best lawsuits?
Yes and no.
Were the products produced in accordance to current organic standards? It appears so. However, if there’s something to be upset about, it’s the loopholes in the organic standards themselves that allowed these synthetic ingredients to be added. The aim of the OCA lawsuit appears to be to pressure the NOP to finally close these loopholes, perhaps by putting pressure on the industry itself.
Tomorrow I’ll talk more about some of the chemicals in question, why they were likely used in the formulas, their benefits, and potential risks they pose. Also of note: Earth’s Best and Honest Company are not the only companies using these chemicals in question. Other organic formulas, including Baby’s Only and Pedia Smart also contain many of the nutrient/chemicals in question.