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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

It is PAST Time to prosecute those who poison

Today, I spent the day talking to a father of a 38 year old, mother of two, who died, and the husband of a woman who died after nearly 50 years of marriage.  The common denominator?  They both ate Jensen Farms Frontera cantaloupe, audited by PrimusLabs and sold at grocery stores in the Denver area.

Marler Criminal jpgSo, after once again spending time with victims of yet another outbreak of foodborne disease who are advocating for justice for themselves and family members, I thought again why prosecutors seem so reluctant to charge those who poison us with food. As I have said far too often, in nearly two decades of representing families impacted in foodborne outbreaks large and small, criminal prosecutions of those who poison us are rare. It is not because the laws do not exist.  So why is that?

Congress passed the Federal Food, Drug, and Cosmetic Act in 1938 in reaction to growing public safety demands. The primary goal of the Act was to protect the health and safety of the public by preventing deleterious, adulterated or misbranded articles from entering interstate commerce. Under section 402(a)(4) of the Act, a food product is deemed “adulterated” if the food was “prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health.” A food product is also considered “adulterated” if it bears or contains any poisonous or deleterious substance, which may render it injurious to health. The 1938 Act, and the recently signed Food Safety Modernization Act, stand today as the primary means by which the federal government enforces food safety standards.

Chapter III of the Act addresses prohibited acts, subjecting violators to both civil and criminal liability. Provisions for criminal sanctions are clear:

Felony violations include adulterating or misbranding a food, drug, or device, and putting an adulterated or misbranded food, drug, or device into interstate commerce. Any person who commits a prohibited act violates the FDCA. A person committing a prohibited act “with the intent to defraud or mislead” is guilty of a felony punishable by not more than three years or fined not more than $10,000 or both.

A misdemeanor conviction under the FDCA, unlike a felony conviction, does not require proof of fraudulent intent, or even of knowing or willful conduct. Rather, a person may be convicted if he or she held a position of responsibility or authority in a firm such that the person could have prevented the violation. Convictions under the misdemeanor provisions are punishable by not more than one year or fined not more than $1,000, or both.

The legal jargon aside, if you are a producer of food and sell adulterated food, you can (and should) face fines and jail time.

  • Larry Andrew

    It seems so obvious that prosecution would help limit deaths and illnesses. We know that some have intentionally distributed contaminated products. Even so, criminals like Stewart Parnell of PCA continue to avoid responsibility.

    We have met people whose loved ones have been murdered by Parnell. We are aware that you are trying your best to push federal prosecutors to move on Parnell. Clearly, prosecution would provide some solace to those who have suffered from his actions and would serve as a warning to others to prevent future willful actions by management to distribute contaminated products.

    Thanks for your efforts.

  • The definitions above would indicate that all food laced with harmful e.coli and salmonella should technically be classified as “adulterants” because they are indeed injurious to health. But, only E.coli O157:H7 and the new big 6 are adulterants. Although CDC statistics reveal that ten times as many Americans die annually from Salmonella than from E.coli, these allegedly harmless salmonella bugs must not be injurious to health.
    We also need to study the ramifications of our laws, if we truly want to promote food safety. Use my plant as an example. In January 2002, I purchased Coarse Ground Beef from a source slaughter supplier, whose boxes all proudly displayed the USDA Mark of Inspection which said “USDA Inspected & Passed”. On 3 consecutive days, I put the Coarse Ground Beef into a clean grinder, did not blend it with any other meat, and ground it. The USDA inspector collected samples for microbial analysis at USDA labs. I held all the meat impacted by the lots in all 3 of those days. The USDA lab concluded that all 3 tests were positive for e.coli O157:H7. What happened? USDA shut down my grinder for 4 months, but did nothing at the source slaughter plant which sold me the hot meat.
    Now, what if neither the agency nor I had tested the meat? After all, we can’t test every grinding batch every day. At a total cost of $75 per test (includes FedX overnight charges), and the fact that we frequently performed many grinds per day, our little plant couldn’t afford to test every batch. If we were forced to do so, and grind 5 batches per day (a conservative figure), the annual cost of testing alone would be $117,000. Let’s be truthful here: all meat cannot be tested. AND, a negative test result is no guarantee that all meat in the lot is guaranteed negative.
    So, let’s assume I ground the meat, did not test it, shipped it, and some consumers were sickened. Should my plant be held liable? According to the 1938 Act and the recent FSMA, yes indeed, because I shipped insanitary meat into commerce. I would be bankrupt, and my employees would be out walking on the street. Everyone is happy! But wait a minute! The true SOURCE of contamination continues to operate, and is not required to implement corrective actions. Outbreaks continue, although countless downstream further processing establishments have been shuttered. How has public health benefitted?
    My point here is that if our ultimate goal is public health via food safety, we need to aggressively find the SOURCE of contamination, force the true SOURCE to clean up its act, and focus litigation against the true source. Otherwise, when your local Safeway, Costco, Sizzlers or Olive Garden serves food which is previously contaminated, if we sue the pants off these institutions, families with sickened members will have their medical bills paid & other expenses, which is good. But as long as the SOURCE SUPPLIERS to Safeway, Costco, Sizzlers & Olive Gardens are immune from prosecution, we virtually guarantee ourselves ongoing future outbreaks. Admittedly, retail meat markets and restaurants must utilize proper food handling procedures which will hopefully fully cook pathogens to death. Such procedures include preventing cross contamination, which is almost impossible, regardless of an abundance of caution.
    The Excel/Brianna Kriefell/Sizzlers litigation provides us a blueprint of how tracebacks and liability should be assessed. Such successful tracebacks must become the norm, not the exception, if Public Health is indeed our ultimate priority. Historically, USDA/FSIS has shown a blithe aloofness to tracebacks, more comfortable in insulating the source from accountability. This listeria outbreak caused by canteloupes provides another example of the value of tracebacks. Should litigation be brought against the grocery stores which sold the canteloupe? Technically, they indeed sold contaminated food to consumers! Why weren’t these grocery stores sued? Because we know that previously-contaminated canteloupe had been delivered to them. Do we expect grocery stores to microbially test all produce, daily, prior to selling? These same grocery stores sold contaminated eggs, peanut butter and spinach to consumers, yet these stores were not held liable. Why then do we hold downstream plants which further process contaminated meat liable for meat which was lethal when it arrived at their docks?
    My point is that if anyone goes to jail for selling insanitary food, we simply gotta place liability where it is due, which is at the SOURCE. Placing liability downstream only allows the SOURCE to continue to flood the market with pathogens, totally insulated from liability.
    Assume one of my customers had gotten sick from eating ground beef I had produced in 2002 which was laced with E.coli. Now that you know all the details, would public health have benefitted if I had been sentenced to prison and paid a stiff fine? And labeled as a “Felon”? Let’s be serious here folks. Until we force the source to clean up its act, consumers will continue to be sickened. Public Health imperatives do not benefit by imprisoning innocent “middle men”. Public Health compels that we staff CDC, FDA, FSIS, and local, state & federal health officials with courageous folks who will proactively pursue tracebacks to the origin, with no fear of litigation guaranteed to occur when tracebacks end up at the doorstep of huge corporations.
    I know nothing about the canteloupe industry. Did Jensen Farms knowingly utilize insanitary processing protocol? Or did it utilize protocol which is the industry standard? Yes, I know, ignorance is no excuse. But there is a possibility that the entire industry ignorantly utilizes similar protocol, which is now being brought into question. If so, Jensen Farms will be the sacrificial lamb requiring the entire industry to upgrade their protocol. Retail prices will increase, and will be passed down to the consumer, which is the way it must be. But it will be a cheap price to pay……just ask the families of the 25 folks who have died thus far from listeria-laced canteloupe.
    Hopefully, litigation will force full disclosure of facts of the report compiled by the 3rd party auditor who inspected Jensen Farms. These facts, including results of microbial testing, will show the degree of fault, if any, emanating from the 3rd party auditor and Jensen Farms.
    John Munsell

  • Larry Andrew

    John…I understand your points and the difficulty of assigning responsibility from a prosecution standpoint. However, even though your issues are valid, they in no way mitigate against full prosection, under existing laws, of those who intentionally distributed food products that were contaminated. Stewart Parnell is the poster boy of profit based management consciously rolling the dice and deciding to distribute regardless of the factual evidence of contamination.
    As Bill has so aptly said, if not Parnell, then who?