What is the current legal situation?
When pesticides are detected in organic products, the question arises whether they are still organic at all. This is no longer the case if traces of pesticides are based on a violation of EU organic law. This violation can either be due to an improper use of pesticides or to a violation of the obligation to avoid contamination from other sources.
Which is often misunderstood: Organic products are not defined as such by falling below limit values. EU organic legislation does not set any corresponding limit values. If a foodstuff is “organic” or not is decided by the normative specifications for agricultural production and the processing of the products as well as by the examination of compliance with these specifications by the organic inspection bodies and not by an “End of Pipe” examination of any traces of pesticides present in the organic product.
If pesticides are detectable in the product, it must be checked whether they indicate a targeted use in the manufacture of the product. If this is the case, it is no longer an organic product. If this is not the case, the question arises whether other requirements of EU organic law have been violated (e.g. avoidance of contamination through storage protection measures).
In the case of traces of pesticides, the drift from neighbouring “conventional” cultures has to be taken into account.
EU organic legislation does not set any rule that drift from conventional crops should query the indication “organic” for harvested products from organic crops.
And it does not provide that the entry of traces of ubiquitous, global or regional pesticide contamination queries the claim “organic”.
What are the benefits of the new Organic Basis Regulation (EU) No. 2018/848 in terms of rules for handling contaminations?
(2, 3, 4)
Although the issue of limit values for pesticides was very controversially debated, the new Regulation does not set very different rules from the current legislation. For companies, the new regulation means more clarity regarding the action to be taken when pesticides are present in organic products. As is already customary, organic farms must comply with precautionary measures, particularly regarding storage and transport. In contrast to the current Organic Regulations, it is now clearer regulated that the precautionary measures to be taken should be proportionate and are in the responsibility of organic farms.
What is new is that not only food producers, but also farmers and all other organic units are to define and monitor precautionary measures in order to protect organic production from unauthorised substances and products. The regulation applies to all substances regulated under organic legislation, such as feed, plant protection or cleaning agents, as well as seeds and food ingredients. The precautionary duties of entrepreneurs must be ‘appropriate’ and ‘proportionate’ and underlies the responsibility of the organic farm. The new rules are particularly important with regard to companies that produce organic and conventional products at the same time.
The proportionate and appropriate precautionary measures relate to the prevention of contamination risks. Analogous to the HACCP concept, the legislator demands a systematic handling of risks in order to avoid non-approved products and substances. These risks at critical control points (OCCP – Organic critical control points) must be identified, control measures defined and these measures regularly reviewed. It is therefore a risk minimisation concept and not a procedure for the complete exclusion of unauthorised substances and products.
Raw material traders and importers must also use this new requirement to establish systematic concepts for controlling the risk of contamination.
All in all, the new Organic Legislation also does not provide any specific limit values – but of course the health-relevant requirements that are specified for all foodstuffs also apply to organic products. That is why it is suitable for organic products to be assessed on a case-by-case basis, focusing on the question of whether there has been an infringement of organic law – or whether contamination was unavoidable.
A violation of the EU Organic Regulation exists if the organic companies use a prohibited substance or do not take appropriate precautions.
Orientation value for organic goods 0.010 mg/kg (BNN)
The approach promoted by the Association of Organic Processors, Wholesalers and Retailers (BNN) in Germany, for example, uses an orientation value of 0.010 mg/kg. The BNN argues that even in compliance with all legal regulations for organic farming, inadmissible substances can be detected in organic products. However, according to BNN, this orientation value is not a legal limit value and should therefore not be interpreted as an “organic MRL” or “critical limit”.
In the legal assessment of pesticide residues, an expanded measurement uncertainty or analytical variance of 50% (DG SANTE) should generally be taken into account.
On the other hand, if the pesticide content of the product has changed as a result of processing (e.g. through drying), the content must be recalculated back to the starting product.
Thus, for the BNN, a product containing up to 0.020 mg/kg of a pesticide would still be marketable as “bio” by the members without restriction, taking into account the measurement uncertainty (if, in addition, a maximum of 2 pesticides were contained in this amount and there were no other indications that legal provisions had been violated). Only starting from 0.021 mg/kg the BNN orientation value would be exceeded, taking into account the measurement uncertainty of 50%.
The orientation value can be applied to all plant based foods, animal feed, over the counter medicines and health remedies from organic agriculture. However, the scope of BNN does not include animal products like honey. It is therefore at the discretion of the food business operator or the control body whether this orientation value is also used for honey if there are no other guideline values at present.
In front of this background of the increased requirements on the risk management of organic companies as a result of the new Organic Regulation, it seems reasonable to examine the raw materials for possible pesticide residues upon receipt of goods.
Special case bee medicines / varroacides in organic honey
Residues of varroacides (amitraz, coumaphos etc.) are particularly problematic for organic honey, since only the substances formic acid, lactic acid, acetic acid and oxalic acid as well as menthol, thymol, eucalyptol or camphor mentioned in Regulation (EC) No. 889/2008, Article 25 (6) may be used for a varroa treatment. A positive result of a synthetic varroacide in organic honey could therefore plausibly result from an unauthorized use. But possibly also a contamination could be present via recycled beeswax (foundations), which should have also organic quality in organic beekeeping, if possible. However, there are exceptions if no organic wax is available on the market. Another possible entry source would be, for example, a contamination via the use of amitraz in fruit-growing (as an insecticide).
Ultimately, the cause of contamination of honey can only be established during an inspection by the inspection body.
We also recommend beeswax for use in organic beekeeping to be tested in advance for pesticides and varroacides for the reasons given (code 88500, with determination limits of max. 0.01 mg/kg, suitable for testing possible risks of contamination of organic honey by the wax).
1) Praxishandbuch Bio-Lebensmittel, Loseblattwerk, 34. Aktualisierungslieferung 08/2013, Behr‘s Verlag GmbH & Co.KG
4) BÖLW, Interpretation der Artikel 27 bis 29, 41 und 42 in der neuen Bio-Basis-Verordnung (EU) Nr. 2018/848, Regeln zum Umgang mit Verstößen und Kontaminationen vom 07.08.2019