UNITED STATES DEPARTMENT OF AGRICULTURE 

AGRICULTURAL MARKETING SERVICE 

BEFORE THE ADMINISTRATOR 

) 

Inre: ) 

Brooklyn Bottling ) 

of Milton, NY, Inc. ) Administrator's Decision 

) APL-055-19 

Milton, New York ) 

) 

This Decision responds to an appeal (APL-055-19) of a Notice of Proposed Suspension 

ofNational Organic Program certification issued to Brooklyn Bottling of Milton, NY, Inc. 

(Brooklyn) of Milton, New York by the Organic Crop Improvement Association (OCIA). The 

operation has been deemed not in compliance with the Organic Foods Production Act of 1990 ··.J. 

(Act) 1 and the U.S. Department of Agriculture (USDA) organic regulations.2 

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). Certifying 

agents also initiate compliance actions to enforce program requirements, as described in section 

205.662, Noncompliance procedure for ce1iified operations. Persons subject to the Act who 

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

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

1 7 u.s.c. 6501-6522 2 7 C.F.R. Part 205 

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

regulations. 

FINDINGS OF FACT 

1. On February 22, 2019, OCIA issued a Notice ofNoncompliance. 

2. On April 1, 2019, OCIA issued a Notice ofProposed Suspension. 

3. On May 10, 2019, OCIA denied Brooklyn's May 7, 2019 request for mediation. 

4. On May 14, 2019, Brooklyn filed an Appeal to NOP. 

DISCUSSION 

The USDA organic regulations at 7 C.F.R. 205.102, Use ofthe term, "organic," state that, 

"Any agricultural product that is sold, labeled, or represented as "100 percent organic," 

"organic," or "made with organic (specific ingredients or food group(s))" must be: (a) Produced 

in accordance with the requirements specified in §205.101 or §§205.202 through 205.207 or 

§§205.236 through 205.240 and all other applicable requirements of part 205; and (b) Handled in 

accordance with the requirements specified in §205.101 or §§205.270 through 205.272 and all 

other applicable requirements ofthis part 205." 

The organic regulations at §205.103, Recordkeeping by certified operations, state that, 

"(a) A certified operation must maintain records concerning the production, harvesting, and 

handling of agricultural products that are or that are intended to be sold, labeled, or represented 

as "100 percent organic," "organic," or "made with organic (specified ingredients or food 

group(s));" (b) Such records must (1) Be adapted to the particular business that the certified 

operation is conducting; (2) Fully disclose all activities and transactions ofthe certified operation 

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in sufficient detail as to be readily understood and audited; ...(4) Be sufficient to demonstrate 

compliance with the Act and the regulations in this part." 

The organic regulations at §205.201, Organic production and handling system plan, state 

that, "(a) The producer or handler of a production or handling operation, except as exempt or 

excluded under §205.101, intending to sell, label, or represent agricultural products as "100 

percent organic," "organic," or "made with organic (specified ingredients or food group(s))" 

must develop an organic production or handling system plan that is agreed to by the producer or 

handler and an accredited certifying agent. An organic system plan must meet the requirements 

set fo1th in this section for organic production or handling. An organic production or handling 

system plan must include: (1) A description ofpractices and procedures to be perfotmed and 

maintained, including the frequency with which they will be performed; ...(3) A description of 

the monitoring practices and procedures to be perfmmed and maintained, including the 

frequency with which they will be perfotmed, to verify that the plan is effectively implemented; 

(4) A description ofthe recordkeeping system implemented to comply with the requirements 

established in §205.103; ...(6) Additional information deemed necessary by the cettifying agent 

to evaluate compliance with the regulations." 

The organic regulations at §205.301, Product composition, state that, "(a) ...A raw or 

processed agricultural product sold, labeled, or represented as "100 percent organic" must 

contain (by weight or fluid volume, excluding water and salt) 100 percent organically produced 

ingredients. If labeled as organically produced, such product must be labeled pursuant to 

§205.303. (b) ...A raw or processed agricultural product sold, labeled, or represented as 

"organic" must contain (by weight or fluid volume, excluding water and salt) not less than 95 

percent organically produced raw or processed agricultural products. Any remaining product 

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ingredients must be organically produced, unless not commercially available in organic form, or 

must be nonagricultural substances or nonorganically produced agricultural products produced 

consistent with the National List in subpart G ofthis part. Iflabeled as organically produced, 

such product must be labeled pursuant to §205.303." 

The organic regulations at §205.302, Calculating the percentage of organically produced 

ingredients, state that, "(a) The percentage of all organically produced ingredients in an 

agricultural product sold, labeled, or represented as "100 percent organic," "organic," or "made 

with organic (specified ingredients or food group(s))," or that include organic ingredients must 

be calculated ... (c) The percentage must be determined by the handler who affixes the label on 

the consumer package and verified by the certifying agent ofthe handler. The handler may use 

information provided by the ce1tified operation in determining the percentage." 

The organic regulations at §205.303, Packaged products labeled "100 percent organic" or 

"organic," state that, "(a) Agricultural products in packages described in §205.30l(a) and (b) 

may display, on the principal display panel, information panel, and any other panel ofthe 

package and on any labeling or market information concerning the product, the following: (1) 

The term, "100 percent organic" or "organic," as applicable, to modify the name ofthe product; 

(2) For products labeled "organic," the percentage of organic ingredients in the product: (The 

size ofthe percentage statement must not exceed one-half the size ofthe largest type size on the 

panel on which the statement is displayed and must appear in its entirety in the same type size, 

style, and color without highlighting;" (3) The term, "organic," to identify the organic 

ingredients in multi-ingredient products labeled, "100 percent organic" ... " 

The organic regulations at §205.400, General requirements for certification, state that, "A 

person seeking to receive or maintain organic certification under the regulations in this part must: 

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(a) Comply with the Act and applicable organic production and handling regulations in this part; 

(b) Establish, implement, and update annually an organic production or handling system plan 

that is submitted to an accredited ce1iifying agent as provided for in §205.200; ...(f) Immediately 

notify the certifying agent concerning any: ...(2) Change in a certified operation or any pmiion of 

a certified operation that may affect its compliance with the Act and the regulations in this part." 

The organic regulations at §205.401, Application for ce1iification, state that, "A person 

seeking certification of a production or handling operation under this subpaii must submit an 

application for certification to a certifying agent. The application must include the following 

information: (a) An organic production or handling system plan, as required in §205.200 ... " 

OCIA proposed a suspension of Brooklyn's organic certification, which would prohibit 

the sale, labeling, or representation of its products as organic. OCIA stated in the April 1, 2019 

Notice of Proposed Suspension that Brooklyn failed to resolve minor noncompliances which 

were due at the time of its 2019 ce1iificationrenewal on Febrnary 1, 2019, and also didn't 

respond to the prior Notice ofNoncompliance. 

In its Appeal, Brooklyn states that it believed that the conective actions on the 

noncompliances weren't due until its 2020 renewal. Brooklyn also states that OCIA erroneously 

cited noncompliances regarding products that are not, and won't be, produced at Brooklyn's 

facility. 

Brooklyn is an organic handling operation which has been certified since June 6, 2006. 

However, Brooklyn has a history of noncompliances. On September 29, 2017, OCIA issued a 

Notice of Proposed Suspension citing fifteen correctable noncompliances, all related to poor 

recordkeeping by Brooklyn. Brooklyn requested mediation and submitted a package of 

documentation, which OCIA determined sufficiently addressed all but 2 of the noncompliances. 

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OCIA denied Brooklyn's mediation request due to the outstanding noncompliances and 

Brooklyn submitted an Appeal. On February 14, 2018, NOP and Brooklyn entered into a 

Settlement Agreement to address the remaining noncompliances and provide for Brooklyn's 

compliance with all recordkeeping requirements. 

Brooklyn agreed in the February 14, 2018 Settlement Agreement with the NOP to obtain 

approval of new and revised product labels prior to use on products represented as "100 

organic," "organic," or "made with organic ingredients" for one year after the effective date of 

the agreement. Brooklyn also agreed to submit all labels and make any needed revisions on 

labels by the deadline set by OCIA and to submit a complete list ofProduction Formulation 

sheets. These terms were also to be in effect for 1 year following execution ofthe agreement. 

However, OCIA noted in a June 28, 2018 Con-ective Action Report that there were still 

luu·esolved minor noncompliances. Specifically, OCIA stated that ull information required for 

certification of products hadn't been submitted in Brooklyn's Organic System Plan (OSP). 

Specifically, 1) the Organic Product Ingredients fonn (OPI) and a label for Inko's Original White 

Tea with Ginger hadn't been submitted. Further, 2) a label for Ink.o's Original (Unsweetened) 

White Tea hadn't been submitted. The report states these materials were due by August 31, 

2018. 

OCIA also stated that 3) Brooklyn needed to submit documentation from the certifiers of 

its organic cane sugar suppliers, specifically that 

verifies and documents the actual percentage oforganic ingredients in the sugar. Additionally, 

OCIA noted that the OPI forms list 

sugar, but the updated Supplier List removed Therefore, 4) Brooklyn was 

as the supplier ofBrooklyn's organic 

asked to provide updated OPis for the Ink.o's White Tea products' sugar supplier. As 

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documentation shows that Brooklyn's Planet Choice brand ofMojito Mint product had been 

removed from the OSP, 5) Brooklyn was asked to submit an OPI for the 'new' Greenway brand 

Mojito Mint. OCIA noted further that 6) the OPI for the Nature's Own Ginseng and Honey 

Green Tea must be revised to list the supplier ofthe citric acid. Brooklyn must also 7) submit 

the color labels for the Nature's Own Pomegranate-Bluebeny Green Tea (5 calorie) and Nature's 

Own Pear White Tea (5 calorie) products in the 16-ounce packaging. Lastly, 8) Brooklyn 

needed to submit cunent copies ofthe Private Labeling Application and Private Label 

Registration for the Inko's, Blue Buddha, Planet Choice and Greenway products. All these 

materials were due at Brooklyn's 'next renewal.' 

C01Tective Action Reports ofAugust 27, 2018 and December 5, 2018, again address the 

noncompliances and reveal that Brooklyn still hadn't submitted the requested documentation for 

noncompliances 3 - 8 described above. Subsequently, on February 1, 2019, Brooklyn submitted 

its renewal documentation; however, it still didn't address the noncompliances and submit all 

requested documentation. Therefore, OCIA issued a Notice of Noncompliance on February 22, 

2019 for Brooklyn's failure to address the minor noncompliances which were due at its 2019 

renewal. The notice delineated the noncompliances and documentation needed to resolve each. 

OCIA issued a Notice of Proposed Suspension after Brooklyn's continued failure to resolve the 

noncompliances. 

The February 14, 2018 Settlement Agreement between NOP and Brooklyn states it is 

effective for 1 year, which is February 13, 2019. Therefore, Brooklyn's 2019 certification 

renewal due on February 1, 2019 is subject to the terms ofthe Settlement Agreement. The 

noncompliances include some issues not covered in the Settlement Agreement, but for which 

Brooklyn is also responsible. Also, Brooklyn has been certified since June 6, 2006, and should 

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be well aware ofthe documentation required to maintain ce1tification, including renewal 

materials. 

However, Brooklyn states in its Appeal that the documentation discussed above was due 

at its next renewal, which Brooklyn understood to be in February 1, 2020, not 2019. Brooklyn 

states that it submitted its 2019 renewal materials on February 1, 2019, prior to OCIA issuing the 

February 22, 2019 Notice ofNoncompliance and April 1, 2019 Notice ofProposed Suspension. 

However, these noncompliances and the documentation needed to resolve them were clearly set 

forth in the June 28, 2018 and August 27, 2018 Corrective Action Reports, as well as the 

December 5, 2018 Corrective Action Report, all issued prior to Brooklyn submitting its 2019 

renewal materials. 

There does seem to be confusion regarding the Nature's Own Pomegranate-Blueberry 

Green Tea and Nature's Own Pear White Tea, for which OCIA requested labels for the 5 calorie, 

16-ounce packaging, which OCIA states are not listed on Brooklyn's OSP. Brooklyn states these 

products and a 64-ounce version ofthe Pomegranate-Blueberry product aren't produced, and 

won't be produced, at their facility and therefore they never had actual printed labels. Brooklyn 

submitted its Organic Product list where a notation of"NOT MADE" is written next to these 3 

products; OCIA confirms this list was submitted at the February 1, 2019 renewal. However, 

Brooklyn also submitted a Product/Service List with its renewal which lists those 3 products 

among those for which certification was being requested. This is contrary to Brooklyn's claim 

that they asked OCIA to remove the products from their list. An Annual Summary of Organic 

Production and Sales- Handling for January 1, 2018 to December 31, 2018, and submitted with 

the renewal, doesn't show any ofthe Pear White Tea or the 64-ounce Pomegranate-Blueberry 

Green Tea being produced, but does show 894 units ofthe 16-ounce Pomegranate-Blueberry 

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Green Tea were produced. Further, OCIA states Brooklyn submitted labels for the 64-ounce 

Pomegranate-Bluebeny and a 64-ounce Pear White Tea, which were noncompliant. Brooklyn 

states that it also submitted the organic ce1tificate for the sugar ingredient and 

isn't using the product; and that is no longer a supplier 

and has been repJaced by 

In conclusion, Brooklyn has been unable to come into and remain in compliance 

regarding several record.keeping requirements. Brooklyn entered into a Settlement Agreement 

with NOP on February 14, 2018 to resolve a prior Notice ofProposed Suspension on 

record.keeping noncompliances, but several months later still had unresolved noncompliances. 

OCIA attempted to work with Brooklyn, issuing Corrective Action Repo1ts on June 28, 2018, 

August 27, 2018, and December 5, 2018, and giving Brooklyn tmtil its next renewal date, 

Febrnary 1, 2019 to submit the majority of missing documentation. However, Brooklyn's 

subsequent Febmary 1, 2019 renewal application didn't include the requested materials. 

Brooklyn has also submitted conflicting documentation and made conflicting statements as to 

cettain products it may or may not be producing and for which it is or isn't requesting 

cettification. Brooklyn has displayed an inability to come into and remain in compliance at this 

time. 

CONCLUSION 

The USDA organic regulations assure consumers that products with the USDA organic 

seal meet consistent, unifonn standards. Key to these standards is that products with the USDA 

organic seal are produced and handled in accordance with the organic regulations. However, 

Brooklyn violated the organic regulations at 7 C.F.R. §205.102; 7 C.F.R. §205.103; 7 C.F.R. 

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§205.201; 7 C.F.R. §205.301; 7 C.F.R. §205.302; 7 C.F.R. §205.303; 7 C.F.R. §205.400; and 7 

C.F.R. §205.401. These noncompliances do not allow for continued certification at this time. 

Brooklyn was given the chance to come into full compliance tlu·ough a previous Settlement 

Agreement with NOP and did not do so. The repeated noncompliances over time demonstrate a 

systemic inability to comply, which justifies a suspension ofBrooklyn's organic certification. 

DECISION 

The appeal is denied and Brooklyn's organic certification is to be suspended. Attached to 

this formal Administrator's Decision denying Brooklyn's appeal is a Request for Hearing form. 

Brooklyn has thirty (30) days to request an administrative hearing before an Administrative Law 

Judge. 

IfBrooklyn waives the hearing, the Agricultural Marketing Service will direct OCIA to 

issue a Notice of Suspension. At any time after suspension, Brooklyn may, " ...submit a request 

to the Secretary for reinstatement of its certification. The request must be accompanied by 

evidence demonstrating correction of each noncompliance and corrective actions taken to 

comply with and remain in compliance with the Act and the regulations in this part." Brooklyn 

may work with any ce1iifier to complete a request for reinstatement. 

Done at Washington, D.C., on this L .,+.. 

day of μ..,.._1....., , 2019. 

z 

Administrator 

Agricultural Marketing Service 

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