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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

FDA Chief Testifies that Peanut Corporation of America is still under criminal investigation and prosecution. Is that true?

I have been watching the Senate Committee on Health, Education, Labor and Pensions food safety hearing this morning by live video. Watching and listening to the Senators’ opening comments gave me hope that S 510 may well pass – and before the end of the year. It would be great to see both the House and Senate pass a bi-partisan measure and have the President sign it – clearly, the time as long since come.

One interesting point that likely did not catch anyone’s attention was a question posed by Freshman Senator Al Franken to Dr. Margaret Hamburg, Commissioner, U.S. Food and Drug Administration. Mr. Franken asked the Commissioner what the status of the criminal prosecution of Peanut Corporation of America (PCA) was?

For those who have forgotten, PCA was responsible for knowingly shipping Salmonella-tainted peanut butter in late 2008 that made its way into some 4,000 products produced by 200 companies and causing at least nine, yes nine, deaths and over 700 other illnesses. Everyone agrees that those numbers are a gross undercount – deaths are likely over a dozen and illnesses over 20,000. A massive recall was announced in February 2009 causing business loss that has been estimated to be at least $1,000,000,000.

Dr. Hamburg’s answer to Senator Franken was that the criminal investigation and prosecution is ongoing. Is it really?

Someone needs to call the FDA, the Justice Department, the US Attorneys’ offices in both Georgia and Virginia and ask the status of the investigation and prosecution. Ask where the Grand Jury is impaneled? Ask what witnesses have been talked to? Who has testified? When will charges be filed?
I think the answer that you will get is a bit different that Dr. Hamburg’s response – under oath – was to Senator Franken.

Several months ago, I posted an overview of how a criminal prosecution of PCA and its principles would happen. In the end I said, “One thing to remember (before we try and convict PCA) is that in 17 years of involvement in every major foodborne illness case, there have been only a handful of prosecutions and fewer convictions. This has been true in cases involving acts as egregious or more so than those of PCA. Not to say they should not be prosecuted, just remember to keep it in context.”

Perhaps I am wrong and that somewhere the wheels of justice are slowly turning.  My guess, however, is that somethings seem to never change.  And, how do we explain that to the ill and the families of the dead?

We are going to prosecute "Balloon Boy’s" dad?