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UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

In re: 

Fusion Organic S.P.R. 

de R.L. de C.V 

Jalisco, Mexico 

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Administrator's Decision 

APL-020-16 

This Decision responds to an appeal (APL-020-16) of a Notice of Proposed Suspension 

ofNational Organic Program certification issued to Fusion Organic S.P.R. de R.L. de C.V. 

(Fusion Organic), doing business as Fusion Organic of Jalisco, Mexico, by Certificadora 

Mexicana de Productos y Procesos Ecologicos SC (Certimex). The operation has been deemed 

not in compliance with the Organic Foods Production Act of 1990 (Act) (U.S.C. 6501 - 6522) 

and the U:S. Depaiiment of Agriculture (USDA) organic regulations (7 C.F.R. Pait 205). 

BACKGROUND 

The Act authorizes the Secretary to accredit agents to certify crop, livestock, wild crop, 

and/or handling operations to the USDA organic regulations (7 C.F.R. Part 205). Ce1iifying 

agents also initiate compliance actions to enforce progrfilll requirements, as described in § 

205.662, Noncompliance procedme for certified operations. Persons subject to the Act who 

believe they are adversely affected by a noncompliance decision of a ce1iifying agent may appeal 

such decision to the USDA Agricultural Marketing Service (AMS) pmsuant to § 205.680 

Adverse Action Appeals Process- General, and§ 205.681, Appeals of the USDA organic 

regulations. 

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FINDINGS OF FACT 

1. Certimex is an accredited certifying agent under the USDA organic regulations; Fusion 

Organic has been a certified organic crop operation since September 9, 2011. 

2. On May 5, 2016, Certimex conducted an unannounced inspection of Fusion Organic and 

collected cucumber leaf samples for pesticide residue analysis. 

3. The analysis, reported on May 9, 2016, detected a prohibited substance, acetamiprid at 

levels exceeding five percent of the Environmental Protection Agency's (EPA) tolerance 

for this commodity. 

4. On May 25, 2016, Certimex issued a Notice of Noncompliance to Fusion Organic 

informing that the product could not be labeled or sold as organic pending further 

investigation of the cause of the residues. 

5. On June 9, 2016, Certimex conducted a follow up inspection to investigate the source of 

acetamiprid contamination. According to the inspection report, Fusion Organic explained 

that flood water in July 2015, which came from an upslope area where nonorganic crops 

were grown, caused the contamination. The inspector collected cucumber leaf samples 

from areas within and outside the area which Fusion Organic reported had flooded. The 

laboratory analysis indicated acetamiprid residues at 0.010 ppm in both sets of samples. 

6. On June 21, 2016, Certimex issued a combined Notice of Noncompliance and Proposed 

Suspension to Fusion Organic. The notice stated that the levels of acetamiprid initially 

detected suggest that the contamination was likely due to direct application rather than 

flood waters. 

7. On June 22, 2016, Fusion Organic submitted a letter to Certimex reiterating that the 

acetamiprid residues on the cucumber leaves resulted from the flooding. Fusion Organic 

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provided photo and video evidence of the flooding and explained that acetamiprid 

metabolites are persistent in soil and water. 

8. On June 26, 2016, Certimex issued a Notice of Proposed Suspension to Fusion Organic 

citing the presence of residues of a prohibited substance on organic cucumber plants due 

to the direct application of acetamiprid. 

9. On July !, 2016, Certimex issued a letter rejecting Fusion Organic's request for 

mediation. 

10. On July 8, 2016, AMS received Fusion Organic's timely appeal. The appeal denied any 

direct or intentional application of prohibited substances. 

DISCUSSION 

Certimex proposed to suspend Fusion Organic's organic certification. The effect of this 

suspension would prohibit all sale, labeling or representation of Fusion Organic's products as 

organic. Certimex proposed to suspend the certification because a prohibited substance, 

acetarniprid, was detected on organic cucumber crops. The residue levels exceeded 5 percent of 

the EPA tolerance for this crop. Certimex asserted that this was a direct application and willful 

violation of the USDA organic regulations. This was based on: (1) Rapid decline in residue 

levels of acetarniprid within a 38-day interval between sample collections. Certimex concluded 

that the levels of acetamiprid initially detected were too high to result from :flooding that 

occurred 253 days prior to the sample collection. (2) Fusion Organic revised its description of the 

extent of the flooding to include a larger area after further residue testing showed trace levels of 

acetamiprid in production areas that were not reported to have flooded. 

In its appeal, Fusion Organic argued the acetamiprid residues were due to flooding and 

were not a direct application. The appeal included: prior laboratory analyses (March 2015, 

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December 2013) which showed no residues of prohibited substances; a letter from a research 

professor explaining how the flooding was the likely cause of the acetamiprid residue findings; a 

letter from the neighbor who farms adjacent lands testifying to the use of acetimiprid on his 

sorghum crop; maps showing the neighboring farmland with respect to Fnsion Organics 

greenhouses; videos/photos of the July 2015 flooding in and outside of the Fusion Organics 

greenhouses; and a log of substances applied to the cucumber crop in 2015 and 2016. 

Fusion Organic provided supporting statements from experts about the behavior of 

acetamiprid in soil, a letter from the neighboring adjacent farm testifying to the use of 

acetimiprid on a sorghum crop, photo and video footage of the July 2015 flooding and prior 

clean residue testing results. Fusion Organic stated that it has implemented conective measures 

to prevent future flooding. 

CONCLUSION 

The record in this case indicates that acetamprid, a prohibited substance, was present in 

the Fusion Organic crop production area. Fusion Organic's claim that the acetamiprid residue 

from flooding is not supported by the evidence. 1) Flooding occuned 253 days prior to sample 

collection and acetamiprid residue would have mostly dissipated in this time period. 2) 

Acetamiprid residues were detected on cucumber leaves. These leaves were not present 253 days 

prior to when the sample was collected and flooding· occurred. 3) The levels of acetamiprid 

residues detected on the cucumber plants exceeded five percent of the EPA tolerance; therefore, 

these crops must not be sold, labeled, or represented as organically produced. The evidence 

indicates that acetamiprid was applied to the cucumbers. 

Section 205,671 of the USDA organic regulations states that organic products which 

exceed five percent of the EPA tolerance for the specific residue must not be sold, labeled, or 

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represented as organically produced. In addition, the USDA organic regulations require that 

organic products must be produced without the use of prohibited substances(§ 205.105); and, 

land for organic production must have no prohibited substances applied for three years preceding 

the harvest of the organic crop(§ 205.202(b)). 

The presence of flood water from nonorganic farms, demonstrates that Fusion Organic 

did not have adequate buffer areas to prevent contact with prohibited substances. Therefore, the 

operation is not in full compliance with § 205 .202( c ), which requires distinct, defined boundaries 

and buffer zones such as rnnoff diversions to prevent the unintended application of a prohibited 

substance to the crop or contact with a prohibited substance applied to adjoining land that is not 

under organic management. 

DECISION 

The appeal is denied and the Fusion Organic operation is to be suspended. 

Attached to this formal Administrator's Decision denying Fusion Organic's appeal is a 

Request for Hearing form. Fusion Organic has thirty (30) days to request an administrative 

hearing before an Administrative Law Judge. 

If Fusion Organic waives the hearing, the Agricultural Marketing Service will direct 

Certimex to issue a Notice of Suspension of the operation. Land areas on which prohibited 

substances were detected will be suspended for three years from the date of the inspection when 

the prohibited substance was detected, May 5, 2016. Fusion Organic may request reinstatement 

of certification at any time for the remaining production areas. A request for reinstatement must 

include results from pesticide residue testing to verify compliance. 

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Done at Washington, D.C., on this / 7-f'... 

dayof f±'-'j-'.S~ ,2017. 

£~-·~ ---- Bruce Summers 

Acting Administrator 

Agricultural Marketing Service 

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