Production of Organic Products and Products with Improved Characteristics: Similarities and Differences in Legal Regulation

The need for the development of organic agriculture in Russia has been talked about for a long time. This direction was mentioned in the Doctrine of Food Security of the Russian Federation, approved by the Decree of the President of the Russian Federation dated January 30, 2010 No. 120 (NW RF. 2010. No. 5. St. 502). According to the new Doctrine of the same name, approved by Decree of the President of the Russian Federation No. 20 of January 21, 2020 (NW RF. 2010. No. 4. Article 345) among the national interests of the state in the field of food security for the long term are the provision of high-quality and safe food products to the population and the development of agricultural production, raw materials and food that meet the established environmental, sanitary-epidemiological, veterinary and other requirements (paragraph 7 of the Doctrine).

Organic agriculture is called upon to play a special role in the realization of these interests, although "traditional" (inorganic) agricultural production must also meet these requirements, otherwise agricultural producers will bear the responsibility established by law. However, products claiming to be called "organic" must be produced under special conditions, and increased requirements must be imposed on them. Until recently, the production of such products was regulated by various state standards, but their subordinate level and fragmentary nature did not allow for comprehensive legal regulation in this area ^{[1, p.35]}.

In order to streamline relations in this area of agricultural production, Federal Law No. 280-FZ "On Organic Products and on Amendments to Certain Legislative Acts of the Russian Federation" was adopted on August 03, 2018 (NW RF. 2018, No. 32 (Part I). Article 5073.  Conducting organic agricultural production of products corresponds to the global trend for the development of a "green" economy ^{[2, p.94]}.

The law "On Organic Products ..." entered into force on January 1, 2020, and six months after that, another document was adopted - Federal Law No. 159-FZ of June 11, 2021 "On Agricultural products, raw materials and food with improved characteristics" (Federal Law of the Russian Federation. 2020, No. 24 (Part I). Article 4177) with the date of entry into force from March 1, 2022. The latter Law explicitly states that it does not apply to relations related to the production of organic products.

Great expectations are placed on these laws, but there are also more restrained assessments. It is well known that organic and improved products are more expensive, and, according to V.N. Kharkov, the adoption of these laws against the background of the lack of positive dynamics of the growth of the general welfare of Russian citizens looked like some "dissonance" for the mostly non-affluent population of the country ^{[3, pp. 3-6. Kharkov V.N. Actual tasks of ensuring effective use lands // State power and local self-government. 2021. No. 11. pp. 3-6]}. At the same time, the author himself acknowledges that these products may be in particular demand on the foreign market.

There are certain differences between the two named laws (which will be shown below), but there are also many similarities, which raises the question of the expediency of the existence of two laws regulating largely similar relations. To answer this question, we will compare these laws, while for brevity we will use the designations "law on organic products or Law No. 280-FZ" and "law on improved products or Law No. 159-FZ", respectively. It should be noted that according to the latest Law (Article 2, paragraph 1), the terms "improved agricultural products" and "agricultural products with improved characteristics" are synonymous and interchangeable.

The similarity between the two named laws can be traced already in their structure, since the Law on Improved Products actually copies the structure of the Law on Organic Products. There are only minor differences, consisting in the fact that the Law on Organic Products has three more articles due to the fact that it provides for a transitional period during which the rules of organic agriculture and organic production are implemented (Article 8), which is not in the Law on Improved Products, and there are two articles on amendments to other federal laws. In addition, Article 5 of the Law on Improved Products establishes the specifics of technical regulation and standardization of such products, and Article 5 of Law No. 280-FZ speaks of confirming the conformity of organic production, but also referring to the legislation of the Russian Federation on technical regulation. The remaining articles either have completely identical names, or the names are similar, only the term "organic products" is replaced by the term "improved products".

Both laws determine which products can be considered organic or improved through the requirements for their production (and the law on improved products – and through the requirements for storage, transportation and sale, but they are practically not disclosed, except for the requirements for packaging and packaging). However, if there is at least a phrase in the law on organic products that includes "environmentally friendly agricultural products, raw materials and food", then in Law No. 159-FZ there is not even a hint of which products are improved, compared to what they are improved, according to what quality and consumer characteristics, etc. At the same time, the requirements for organic and improved products themselves, enshrined in the laws (in both laws, this is Article 4), partially coincide, if not textually, then at least in meaning. Thus, both laws contain requirements for separating the production of organic (and improved) products from the production of products that are not such. Both laws contain prohibitions on the use of cloning and genetic engineering methods, ionizing radiation, as well as containers (packages) that can lead to contamination of organic (improved) products.

At the same time, the law on organic products contains almost twice as many requirements (there are 13 of them, and only 7 in Law No. 159-FZ), i.e. the requirements for its production are stricter. As for the condition of Law No. 159-FZ on the use of recyclable and (or) biodegradable packaging and packaging materials, it does not cause any doubt, but it is unclear how this requirement characterizes the products themselves, how it affects their improved characteristics, because ordinary agricultural products can also be packaged in biodegradable containers, but only due to this, the products do not become improved.  

Let us also pay attention to the fact that both of these laws provide for such requirements for each type of product, which by and large should be extended to the production of any, not only organic or improved agricultural products. So, for example, in paragraph 2 of Article 2 of Law No. 280-FZ, it is stated that when conducting organic agriculture, methods, methods and technologies are used aimed at ensuring a favorable state of the environment, strengthening human health, preserving and restoring soil fertility. A similar requirement, although stated in other words, is contained in paragraph 3 of Article 4 of Law No. 159-FZ: to apply technologies that meet the established environmental, sanitary-epidemiological, veterinary and other requirements and have a minimal negative impact on the environment.  One might think that when conducting traditional agriculture, these requirements can be violated!

The similarity of the two laws under consideration is visible to the naked eye, so in the literature these laws are often analyzed together. For example, L.V. Andreeva points out that both laws provide for the maintenance of relevant registers (unified state registers of producers of organic products and producers of agricultural products, food, industrial and other products with improved characteristics) and that confirmation of conformity of production of organic products and products with improved characteristics is carried out in the form of voluntary certification ^{[4, pp. 50-55]}. And the title of the article by L.V. Andreeva leaves no doubt that she refers agricultural products with improved characteristics to a variety of environmentally friendly products.

The marking mark approved in accordance with Article 7 of the Law on Improved Products in the form of a graphic image (conformity mark), on which the words "Green standard" are present, can also give grounds for identifying improved products with environmentally friendly (organic).

It should be noted that due to the imperfection of the current legislation, it is sometimes easier for unscrupulous participants in the agricultural market to engage in "greenwashing" (green laundering or green camouflage), which means assigning trademarks to products that include elements indicating the environmental friendliness and naturalness of these brands, although in fact these brands are either not such, or they do not have documents confirming these properties of goods ^{[5, pp. 49-56; 6, pp.12-15]}. And, as the Ministry of Agriculture of the Russian Federation explains, Law No. 280-FZ does not contain norms concerning the impossibility (prohibition) of using the term "organic", as well as its abbreviations or words derived from this word, for labeling products that are not organic within the meaning of this Law (<Information> The Ministry of Agriculture of Russia "Clarifications on the procedure of state regulation regarding the use of graphic images "organic", "bio" and "eco"" // SPS ConsultantPlus). The same can happen with improved agricultural products.

At the same time, such unscrupulous agricultural producers may be brought to administrative responsibility for deceiving consumers (in particular, for misleading them about the consumer qualities of goods – Part 2 of Article 14.7) or under other articles of the Administrative Code of the Russian Federation. So, in practice, there is a case of bringing Standard LLC to responsibility under Part 3 of Article 15.12 of the Administrative Code for the release of vodka into circulation in violation of the established procedure for labeling (information). Specifically, the offense consisted in the fact that the label "organic" was placed on the packaging of the manufactured products in the absence of a certificate of conformity of organic production issued by a certification body accredited in the field of organic production and information in the unified state register of organic producers (Resolution of the First Cassation Court of General Jurisdiction dated October 12, 2021 No. 16-6213/2021 // SPS ConsultantPlus). However, such examples are still rare.

In fact, the authors of the Law on Improved Products also proceeded from the identity of improved and organic products, which is clearly seen from the Explanatory Note to this Law (then still a draft law). It says that the project was developed as part of the execution of a number of instructions to create Russian protected brands of environmentally friendly agricultural products, raw materials and food. Further, the note explicitly states that in the draft law the phrase "agricultural products, raw materials and food with improved characteristics" is used as an analogue of the world eco–labeling (by us - V.U.) to bring to the consumer information about improved aspects of products (Draft Federal Law No. 1087686-7 "On agricultural products, raw materials and food with improved characteristics" (ed., introduced in the State Duma of the Federal Assembly of the Russian Federation, text as of 12/30/2020) // SPS "ConsultantPlus". Draft regulations). In order to justify the need to adopt the bill, the Explanatory Note contains references to the foreign experience of the USA (where four categories of products are provided for "organicity") and the PRC (where there are three types of certified products: "environmentally friendly agricultural products", "green products" and "organic products").

Above, we mainly talked about the significant similarities between the two analyzed laws and named some differences that, in our opinion, are only terminological (editorial) in nature. However, there is another significant difference that is difficult for us to explain. We are talking about the levels of legal regulation of the relations in question. In the field of organic production, it is based on the acts constituting the law of the Eurasian Economic Union and is carried out in accordance with this Federal Law, other federal laws, other regulatory legal acts of the Russian Federation, as well as laws adopted in accordance with them and other regulatory legal acts of the subjects of the Russian Federation (Article 3 of Law No. 280-FZ). As for improved products, regulation is provided here only at the federal level (Article 3 of Law No. 159-FZ), which seems to be a legal and technical error. Since the improved products are positioned as environmentally friendly and the Law itself mentions technical regulation, and many existing technical regulations for agricultural products have been adopted at the level of the Customs Union and the EAEU, and Article 5 of Law No. 159-FZ on acts constituting the right of the EAEU mentions, then these acts should be mentioned in Article 3 of the said law. And, of course, there is no justification for eliminating the subjects of the Russian Federation from regulating relations in this area. This is not a matter that belongs to the exclusive competence of the Russian Federation. With regard to organic products, there is already a sufficiently developed regional legislation, which was thoroughly analyzed by I.A. Ignatieva ^{[7, pp.94-198]}. It is obvious that in the field of production of improved products, the subjects of the Russian Federation could also establish the specifics of legal regulation, taking into account local specifics.

Summing up the results of the study, we can say that the adoption of the Law on Organic Products is undoubtedly important, not only for environmental protection, but also for solving economic and social problems. We share the opinion that the creation of a developed system of organic production in Russia will create new opportunities for small and medium-sized agricultural producers, the implementation of which will allow them to occupy their niche in agribusiness and avoid direct competition with large agricultural holdings. In addition, due to the steady growth in the consumption of organic products on world markets, domestic organic products that meet the standards of importing countries will have a high export potential and can be sold with added value. ^{[8, p. 140-141]}. The above, in principle, can be attributed to the Law on Improved Products, which has the same goals as Law No. 280-FZ:  promoting the sustainable development of agriculture, improving the quality and safety of agricultural products and their competitiveness in foreign markets, etc. One can also agree that "the production of organic products and products with improved characteristics will make a certain contribution to the process of reducing the negative impact of agricultural activities on the environment" ^{[9, pp. 177-186]}.

Nevertheless, the adoption of the Law on Improved Products, in our opinion, should be recognized as excessive legal regulation, since, as has been shown, this regulatory legal act largely duplicates (with the replacement of terms) the law on organic products, which can mislead the end consumers of both products. This can also create certain difficulties for agricultural producers. Since Law No. 280-FZ, as mentioned above, provides for a transition period to organic agriculture, during which the introduction of rules for the production of organic products is ensured, an agricultural producer can theoretically register as a manufacturer of improved products for this period (of course, provided that the production meets the requirements of the Law), and only then register as a producer of organic products. But this is double certification, double registration, double costs.

In our opinion, the best option would be to recognize the Law on Improved Products as invalid, and if there is something in it that was not fully taken into account when adopting the Law on Organic Products, then nothing prevents amendments and additions to the latest Law.

As already noted, the authors of Law No. 159-FZ executed the instruction of the President of the Russian Federation "to ensure the preparation of a draft federal law on agricultural products, raw materials and food with improved environmental characteristics and the adoption of such a law" (part two of subparagraph "a" of item 1 of the List of instructions following the meeting of the State Council approved by the President of the Russian Federation on 13.02.2020 No. Pr-234GS // SPS ConsultantPlus). But why this order could not be executed in any other way - by amending the Law on Organic Products, which, by the way, there is not a word about in the Explanatory Note to the bill already mentioned. And if, following the example of foreign countries, it was advisable to introduce different types (categories) of such products "according to the degree of their organicity", why was it necessary to adopt a separate law and call organic products essentially "improved"?

     We are aware that the questions raised are rhetorical, and it is unlikely that the Law on Improved Products will be repealed, especially since a number of by-laws have already been adopted to develop it. But then it is necessary at least to more clearly define the range of relations regulated by each of the Laws under consideration, to make the concept of improved products more informative, to clarify that relations for the production of improved products are regulated not only at the federal level and, perhaps, subsequently resolve other issues that will arise in practice.

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