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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Will Jensen Farms, Frontera, PrimusLabs or others be criminally prosecuted for 123 Listeria illnesses with 25 deaths?

Food Poisoning Criminal.jpgDon’t hold your breath on it.

Jensen Farms received an FDA “Warning Letter” yesterday after its and Frontera’s cantaloupe had been linked to 123 illnesses with 25 deaths.  Interesting, despite my post of late last night “It is PAST Time to prosecute those who poison“, I missed this line in the letter:

the receipt of this warning letter and any action taken to correct the violations cited in it do not preclude a subsequent criminal prosecution by the United States Department of Justice.

Is a criminal investigation or prosecution in the offing?  According to the Warning Letter:

During the inspection, we also collected environmental swabs from various locations and surfaces throughout your packing facility. FDA conducted laboratory analyses which determined that 13 of the 39 total environmental swabs were positive for outbreak strains of Listeria monocytogenes. PFGE analysis determined that eleven of the positive swabs matched the strain of Listeria monocytogenes represented by cluster #2, one positive swab matched the strain of Listeria monocytogenes represented by cluster #4, and one positive swab matched the strain of Listeria monocytogenes represented by cluster #3. Further, one swab was positive for a strain of Listeria monocytogenes that did not match any of the outbreak strains. These positive swabs were taken from different locations throughout the washing and packing areas in your facility, all of which were either food contact surfaces or areas adjacent to food contact surfaces. This significant percentage of swabs that tested positive for outbreak strains of Listeria monocytogenes demonstrates widespread contamination throughout your facility and indicates poor sanitary practices in the facility. 

In addition, in its inspection report, the FDA identified the following factors as those that most likely contributed to the introduction, spread, and growth of Listeria monocytogenes in the cantaloupes:

Introduction:

  • There could have been low level sporadic Listeria monocytogenes in the field where the cantaloupe were grown, which could have been introduced into the packing facility
  • A truck used to haul culled cantaloupe to a cattle operation was parked adjacent to the packing facility and could have introduced contamination into the facility

Spread:

  • The packing facility’s design allowed water to pool on the floor near equipment and employee walkways;
  • The packing facility floor was constructed in a manner that made it difficult to clean
  • The packing equipment was not easily cleaned and sanitized; washing and drying equipment used for cantaloupe packing was previously used for postharvest handling of another raw agricultural commodity.

Growth:

  • There was no pre-cooling step to remove field heat from the cantaloupes before cold storage. As the cantaloupes cooled there may have been condensation that promoted the growth of Listeria monocytogenes.

As Patrick Malone of the Pueblo Colorado Chieftain wrote this morning in “Criminal charges are possible in listeria deaths”, criminal prosecution is unlikely:

“District attorneys have primary jurisdiction over homicides,” said Mike Saccone, spokesman for Attorney General John Suthers’ office….

  Saccone said he is not aware of a criminal investigation focusing on Jensen Farms, but probably wouldn’t say so even if one was launched. It is the policy of the attorney general’s office not to comment on open investigations.

  Charles Miller, a spokesman for the U.S. Department of Justice, said no criminal probe has begun at the federal level, either.

  “As far as I’ve been able to tell, the justice department does not have any involvement in this matter,” he said.

Like I said, don’t hold your breath.  If we did not prosecute in the following recent cases, why would we do it to now?

Ground Turkey – Salmonella Heidelberg

Alfalfa SproutsSalmonella I 4,[5],12:i:-

Shell EggsSalmonella Enteritidis

Peanut ButterSalmonella Typhimurium

You get the point.  Message to businesses – If you sicken and kill your customers, there are no criminal consequences.