New EU Organic Regulation imminent – an analysis

The organic industry in many European countries reacted with horror when they heard that the Council of Ministers, the EU Parliament and the Commission have agreed behind closed doors on a revision of the EU Organic Regulation. Analysis of the results of negotiations reveals there are good reasons to be horrified. The organic sector is going to have a hard time in future. However, because numerous amendments are necessary, the final meeting of the EU ministers of agriculture was postponed at the last minute.

The text that was agreed by the negotiators of the three bodies on 28 June comprises 202 pages and it doesn't even contain all the specific stipulations that will apply in future to organic farmers, processors and traders. The EU Commission has still got to supply a lot of detail, such as the list of authorised plant protection products, fertilisers and additives.

We're not getting the organic threshold value, but...

The threshold value of 0.01 mg/kg for pesticide residues in organic products, originally planned by the EU Commission, has been negotiated away. However, EU states that have incorporated such a threshold value in their national law are permitted to retain it. Four years after the Regulation enters into force – which means in 2024 – the Commission will produce a report. So the issue will automatically be on the agenda again.

Instead of the threshold value what we find in Article 20 of the trilogue document are some formulations that are a cause for concern: there is a whole catalogue of measures for organic farms to go through as soon as there is evidence that a product contains any substance not permitted in organic agriculture. Processors and traders have their internal quality assurance procedures to continually analyse purchased goods and with modern  equipment they can prove the presence of even the minutest trace well below 0.01 mg/kg. If this proved to be the case, the companies concerned would first have to launch an investigation themselves and eliminate any suspicion that the goods infringe organic guidelines. If they are unable to do so, they have to inform their control organisation or the control authorities who will then block the goods and start their own investigation. It has to be concluded within a reasonable time that takes into consideration the durability of the product and the complexity of the case.

How the requirements this this passage of the document are to be carried out in detail will be prescribed subsequently by the Commission in an implementing act. These rules are proposed by the Commission and decided by the member states in an organic agriculture committee. If there is no consensus among the member states, the Commission can, at least theoretically, go ahead and issue the implementing act.

The organic umbrella organisation BÖLW  had already drawn attention to this problematic regulation that had been included only last year during negotiations. “Organic producers should not  be penalised for pesticides and other contaminants that they choose not to use,” said BÖLW chairman Felix Prinz zu Löwenstein. “Unfortunately the  EU Presidency is proposing precisely such a stipulation for the new organic law. And it's doing so, even though it's clear that this is to the detriment of organic and doesn't contribute to more consumer protection. Nor will this rule result in less pesticide being used in agriculture in Germany and the EU.”

Mandatory precautionary measures: “This drives organic farming back into niches”

Following the logic of the new EU Organic Regulation, organic farmers are themselves to blame if their fields and products are contaminated by toxic sprays  used by their conventional neighbours. This is why they are told they should protect themselves by means of “appropriate and reasonable precautionary measures”. According to Article 20, these measures should be based on a risk analysis and should be examined and adapted regularly. Here too, crucial details regarding implementation are still to be supplied by the Commission.

Many organic farmers already protect themselves against contamination by, for example, planting hedges between themselves and neighbours or leaving flower strips. But that's already not always enough to prevent spray drift. “The EU Commission imagines that all organic farmers discuss with their conventional neighbours when they are going to use herbicides or pesticides and whether they are are doing so correctly,” explains Rosi Fritz, the head of quality management at the manufacturer Lebensbaum. She says the organic farmer is obliged to keep a record of conversations so that, if residues are found, he can prove to the control organisation that he took all possible measures to prevent contamination.

Lawyer Hanspeter Schmidt sees another danger. The text could also be interpreted to mean that an organic farmer has to demand of his conventional neighbour that he desists from spraying because it can have a deleterious effect on his organic farming. “Maybe he doesn't have to go court straightaway but what the organic farmer must do, in order to fulfil his duty, is discuss not spraying with his neighbour and  be able to prove to the control organisation that he has done so,” Schmidt writes in an initial analysis of the text of the Regulation, and he issues a warning: “This will bring war to the villages.”

This is why Schmidt, an expert in organic law, considers the new precautionary measures in the Regulation to be a prevention programme: “It prevents organic crops being grown in a diverse landscape. Any farmer would think twice about converting land to organic if he's got conventional neighbours. This drives organic farming back into niches.” For Martin Häusling, chief negotiator in the EU Parliament, no such danger exists: “Organic farmers have a guarantee that basically there is no change to the status quo,” he writes in his evaluation of the outcome of the trilogue.

Animal welfare: exemptions still in place

Up to now, the EU Organic Regulation has defined animal welfare and species-appropriate animal keeping mainly in terms of metrics like the amount of space needed, the length of perches, access to outdoors and the composition of fodder. The state of animals' health played no part in organic controls – and that is likely to remain the case. Although the Commission and member states still have to provide many details, we can already see that the problems associated with organic animal husbandry have not played a part in the new version of the Regulation. The fact that the Regulation now requires animal keepers to have technical knowledge means there is little change.

The exemption of tethered animals on small-scale dairy farms is retained. Whereas the member states had their own  definition of 'small-scale farm', in  the new text 50 animals (excluding offspring) are considered to be small scale. As in the past, debeaking and dehorning are permitted in individual cases. The negotiators seem not to have been worried by the fact that in some countries the exceptions have become the rule. Animals can still be castrated if it benefits product quality or has been common practice. No change has been made to the rule that painkillers or anaesthetics can be given in the case of these interventions. A combination of both would be in the interest of animal welfare.

The rules governing animal stalls stipulated that a maximum of half the area of a stall could consist of a slatted or grating floor. This maximum of a half has been dropped and the area can, therefore, be greater. It is expressly stated that in the case of laying hens the maximum number of birds kept in a single section of a stall is 3000. There are no upper limits for stalls, so that (as already the case) stalls with  30,000 organic hens will be permitted. The upper limits for broilers and turkeys are discontinued and the only rule retained is that in the production of meat “the total area of poultry stalls per production unit must not exceed l,600 m².” Using the current metrics,  that would mean 16,000 birds can be fattened in a single stall.

Conventional protein feed still permitted

In the rules that apply to feed the proportion of feed produced on-farm is raised by 10 percent to 70 percent in the case of ruminants and 30 percent for pigs and poultry. Farms are still permitted to cooperate with other farms “in the region”. There is still no definition of “region”.  Conventional feed can still be used for another five years, but only for piglets up to 35 kg and young birds. The proportion must not exceed five percent and be only protein-rich feed. Rules for keeping game and rabbits have now been included in the Regulation.

Seed: trading simplified

Organic seed can in future be traded without having to go through the usual variety authorisation associated with conventional agriculture. Above all, this benefits organically bred open pollinated varieties because these are often more diverse and less uniform than is demanded by seed certification. Because there is hardly a market for regionally adapted organic seed in many EU countries, the exemption still applies that, if such seed is not available, untreated conventional seed can be used – for the next 15  years.

Imports: EU Organic making the world a better place

From the outset there was consensus among the EU institutions: organic imports from third countries into the  EU will in future only be allowed if the farmers in the exporting countries adhere in every detail to the stipulations of the EU Organic Regulation. Existing equivalence agreements will expire within five years and will have to be renewed. This applies to the so-called recognised third countries like India, Argentina, Israel and Canada. In the case of other third countries the Commission can authorise exemptions for individual products for two years. BÖLW chairman Felix Prinz zu Löwenstein describes the consequences: “82 % of all certified organic farmers live in Africa, Asia and Latin America. Exporting to Europe will be made more difficult and in some cases impossible for these small farmers. That means we cannot fulfil our development policy obligations.”

Vote in the autumn

In an interview with the leading German organic consumer magazine Schrot&Korn Martin Häusling said: “From political agreement in the trilogue to the final law is a long journey. The legal services of the European Parliament and the Commission will have another look at the draft text. Whatever textual errors there are can be corrected.” However, there shouldn't be any further changes to the actual content. In the autumn the EU ministers of agriculture will vote on the final version in the Council of Minsters and the parliamentarians in the European Parliament. If a majority in either of these bodies were to vote against the revision, it would mean it fails – and the existing EU Organic Regulation would remain in force.