As much as eight per cent of organic produce tested by Canadian inspectors has so much pesticide residue that experts say there is a strong indication synthetic chemicals were deliberately used, a CBC News investigation has found.

Health Canada sets a maximum residue limit (MRL) for food products, representing the most that is expected to remain on food when a pesticide is used according to label directions.

The agency that inspects food says residue levels that have more than five per cent of that maximum level “are considered to imply the deliberate use of a pesticide.”

In an analysis of two years of testing conducted by the Canadian Food Inspection Agency (CFIA), CBC News found eight per cent of organic fresh fruit and vegetables would be in the category that the agency says would imply deliberate pesticide use.

Miles McEvoy, deputy administrator for the National Organic Program in the U.S., said residues exceeding five per cent of the maximum limit need to be scrutinized.

Miles McEvoy

Miles McEvoy, deputy administrator for the National Organic Program in the United States, says the testing protocol in that country is part of a beefed-up enforcement plan that was implemented at the request of organic farmers. (CBC)

“You're going to want to look again specifically at the pesticide, at the levels, but yes, if you find over five per cent of the MRLs that is a good indication that there was some direct application rather than drift,” McEvoy said.

U.S. Department of Agriculture regulations prohibit produce with pesticide residues exceeding five per cent from being sold with an organic label. 

“The concept there is that organic products shouldn't have residues on them because they're not grown with the use of these synthetic pesticides, but occasionally there may be some residues on a crop from drift,” McEvoy said.

In Canada, no such restrictions apply. 

The CFIA said it did not prevent the eight per cent of produce that exceeded the threshold from being sold as organic because it did not represent a health risk.

The official limits vary between the two countries.

“There are however alarm bells that can go off, or red flags,” said Matthew Holmes of the Canada Organic Trade Association, in reaction to the findings by CBC News.

Holmes noted that high levels of residue can be an indication of deliberate use of prohibited pesticides, but it is not definitive. There is also the possibility that they are the result of drift from other farms or improper handling and storage.  

"These products aren't going to be absolutely pesticide-free. They're just grown without the use of persistent toxic chemical pesticides." Holmes said.

In an email to CBC News, the CFIA said when residues are found that are above five per cent of the maximum limit, “the CFIA informs the certification body, who are required to followup with the operator/producer to determine the source of the contamination.”

That could trigger suspensions and cancellations of the operator’s licence if the producer violated the rules. 

The CFIA could not say if any of the produce that tested positive for residues in the data provided to CBC News resulted in enforcement actions.

The agency adds Canada’s organic certification is recognized as equivalent to that of the U.S.

CBC News analysis of the data excluded produce that contained persistent contaminants such as DDT, as well as natural pesticides permitted in organic agriculture.

Mandatory testing in U.S.

Starting in 2013, the USDA required five per cent of organic operations to undergo routine pesticide residue testing.

No such testing program exists in Canada, although the CFIA does test a certain amount of organic produce in its pesticide monitoring program for all foods.

The agency tested 921 samples for pesticide residue in a two-year period ending September 2013.

“I think that residue testing can offer an important role because it helps ensure consumer confidence,” independent organic inspector Stuart McMillan told CBC News in an interview.

The U.S. testing protocol is part of a beefed up enforcement plan that was implemented at the request of organic farmers, according to the USDA’s McEvoy.

“They were seeing violations that were occurring, and enforcement was not occurring. Civil penalties were not being used,” McEvoy said.

“But I think organic farmers in particular, when they see violations, they want everyone to be held to the same standard and they want the penalties to be significant so that people are playing by the same rules,” McEvoy said.

Criminal court cases

The USDA responded to the organic farmers’ concerns by assessing approximately $500,000 in fines involving dozens of operators in the last four years. It even sent cases to criminal court.

Mark Kastel

Mark Kastel, a farm policy analyst at the Cornucopia Institute in Wisconsin, says his organization has filed a legal complaint with the USDA against Quebec-based Jirah Milling and Sales Inc.

In April 2012, Harold Chase of Springfield, Ore., was sent to prison for more than two years after he pleaded guilty to wire fraud for selling in excess of four million pounds of corn falsely labelled as organically grown.

Chase is one of three people the USDA helped put in jail in the last few years.  

“The penalties send the message that you can't get away with defrauding the organic consumer,” McEvoy said.

The CFIA could not point to a single prosecution involving organic products.

In 2009, the agency came close to prosecuting a bakery for organic fraud under the Food and Drugs Act.

As reported by CBC News on Thursday, CFIA inspectors completed an investigation that showed a bakery in Burnaby, B.C., had been selling organic bread using conventional flour for years.

In the end, the CFIA did not charge the bakery for misleading customers.

Certification cancelled

While no charge was laid in that case, the CFIA does regularly cancel organic certification for companies not following the rules.

In 2011, Quebec-based Jirah Milling and Sales Inc. lost its organic certification. According to the CFIA enforcement website, the certification was cancelled in part, for making false or misleading claims in the company’s application to be certified organic.

No other details were released by the CFIA because they are considered private information.

Seven months later, Jirah regained its certification.

Mark Kastel, a farm policy analyst at the Cornucopia Institute in Wisconsin, is troubled by that.

“We are very disturbed that they've been recertified.” Kastel said in an interview with CBC News.

“If you put the money back in the bank after you've been caught stealing, should we let bygones be bygones?” he said.

 “They should be banned in involvement in commerce and organics,” Kastel added.

CFIA lacks enforcement powers

Under U.S. rules, Jirah Milling would be banned for five years from re-certifying as organic.

Kastel said his organization has filed an additional legal complaint with the USDA against Jirah.

“We're concerned that the Canadian officials lack enforcement powers to really crack down on problems when they turn up,” he said.

Jirah Milling president Andrew Eastwood told CBC News the cancellation of the organic certificate is old news and declined to go into specifics.

“We got our certification back and we are back in business,” he said.

The CFIA explained why the company was recertified.

“If they’ve been certified again, the organic operators and the accredited certification body have the confidence that this organic operator has all the organic process in place that adheres to the organic standards,” said Rola Yehia, acting national manager of the CFIA’s consumer protection division, in an interview with CBC News.

Despite the existence of cheaters, experts stress that most operators are honest.

“My role as an inspector has confirmed that the vast majority of operators operate with integrity, with honesty and the system works just fine, but in any industry there are going to be people who cut corners and try and find their way around things,” McMillan said. 

With files from the CBC's Gosia Sawicka