A. The outbreak’s “rogue elements”: the actions and inaction of others in the supply chain, and third parties, in bringing heavily contaminated fruit to market.
Jensen Farms’ inexcusable failures were its own, and certainly nobody will convince a jury that Jensen is blameless. The question of causation, however, and whose actions and inactions caused or contributed to 146 illnesses, one miscarriage, and 32 deaths nationally is much broader.
Frontera was certainly no stranger to the Jensen Farms facility, and will not escape the duties of care that it too owed to consumers of its products to ensure that Jensen Farms’ cantaloupes were being safely produced. A Frontera representative, Amy Gates, visited the facility just a short time before the fateful 2011 audit by James Dilorio, which is addressed below, clearly to ensure that the farm and facility was in a proper condition for examination by its auditor of choice, Primus Labs, through Bio Food Safety.
According to the Jensen brothers, during her July 2011 visit, Amy Gates provided them with advice about preparing for the audit, but did not note any problems. Ms. Gates could have seen the conditions of Jensen’s facility (from its improper equipment, to the materials from which some of the equipment was made, to the propensity for the facility to be a breeding ground for bacteria, to the improper wash system, and the FDA’s list goes on) was ripe for anybody who favored safety over production to step in and prevent the most lethal outbreak in US history.
To read from Frontera’s website about its efforts to achieve better food safety would cause the ordinary consumer to believe that safety was, at the time of the outbreak, and remains a top priority. Not only are its products dubiously billed as being “Primus Certified,” Frontera is stated to be GFSI compliant, SQF certified, and “Produce Marketing Association Gold Circle, Advancing Food Safety Certified.”
Undoubtedly, without even delving into the question of what these compliances and certifications actually mean, these safety systems recognize the importance of ensuring, at the very least, that all entities in the chain of distribution, from farm to fork, are following good agricultural and manufacturing practices, and have a dexterous understanding of basic food safety practices.
According to Will Steele:
Regarding our food safety requirements, we require that all suppliers commit to following federal government food safety guidelines appropriate to their individual operations. These may include: FDA’s Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables, Good Agricultural Practices and Good Manufacturing Practices. Suppliers’ packing facilities and growing fields are required to undergo and pass third-party audits. Finally, since 2009, we have been working with all our growers to move to third-party audits that comply with the Global Food Safety Initiative (GFSI). Our implementation timetable is for all of the produce we market to be 100% GFSI compliant by the middle of next year, and we are on track to meet that goal.
See Steele November 28, 2011 Interview with The Packer.
But the findings of every objective observer of Jensen Farms facilities and practices stands in stark contrast to everything that Frontera represented was right about its product line. The truth of the matter is that Jensen Farms was grossly negligent, it did not follow basic industry standards, it did not follow FDA guidance, and it lacked even a basic understanding of how to safely grow and process cantaloupes at high volume to meet the distribution needs that Frontera set up for it. Responsibility flows to more than one’s own business interests from business relationships, and Frontera did not act reasonably to ensure that Jensen’s clear failures, which were readily apparent even before the outbreak happened, were corrected. Frontera was in a ready position to do so, at Amy Gates’ visit prior to the outbreak and at any other time, but did not act, instead relying on a very basic, and ultimately negligently conducted audit, designed primarily to ensure that product continued to flow so that Frontera could fulfill the many distributive obligations that it had secured. After all, in what business position would Frontera have been if James Dilorio had failed Jensen Farms on July 26
In the wake of this monumental outbreak, the prevailing system for third-party audits has come under intense scrutiny. Time and again, this firm has represented injured people, or the families of those who have died, in outbreaks where a negligent processor was given glowing reviews, only for investigating agencies later to find during unbiased, competent investigations done without the veneer of conflicting interests, that the facility in which the food was produced was not suitable for the production of CAFO-destined animal feed, much less food for human consumption. And clearly, Jensen Farms’ packing facility was no exception.
Again, Mr. Steele:
In the wake of this experience, we are examining, among other things, the role of audits. Third-party audits are an important and useful tool, but they are obviously not fail-safe. Audits provide baseline information on conditions at the time they are conducted. So we are looking at possible changes that might further enhance food safety. One area of focus is whether additional steps are needed to validate the audit findings regarding food safety protocols that are in place. Validation could be in the form of a follow-up audit, or perhaps other measures that will help provide additional assurance of food safety compliance.
 Will Steele had been to Jensen Farms facility six times in a 6-year period.
 “GFSI” stands for Global Food Safety Initiative.
 “SQF” stands for Safe Quality Food.