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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

The Deadly 2011 Cantaloupe Listeria Outbreak – My View Part 3

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,[1] 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,[2] SQF certified,[3] 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.[4]

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.


[1]           Will Steele had been to Jensen Farms facility six times in a 6-year period.

[2]           “GFSI” stands for Global Food Safety Initiative.

[3]           “SQF” stands for Safe Quality Food.

[4]           http://www.thepacker.com/fruit-vegetable-news/Frontera-CEO-discusses-companys-role-in-listeria-outbreak-134589383.html

  • Paul F Schwarz

    Looking at POSSIBLE changes scares the hell out of me! Changes should be put into place now! Obviously changes will cost money. If profits are involved there is a chance that so called changes may be put in place but at this point I feel that any changes will be minor. My father and many others should have been protected from listeria tainted cantaloupe! When will congress act?

  • Dan Cohen, Maccabee Seed Co. Davis CA

    Under strict liability, negligence does not have to be proven. Something else is going on here:

    “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.”

    The combination of new (changed) equipment and increased volume demands is a common pairing in produce outbreaks. The process of growth itself is a hazard that has to be accounted for.

    How does that translate further up the buyer chain as all actors make safety claims, when safety is not in fact the priority for buyers but price? When there is a highly concentrated buyers’ structure, and price dominated decisions flow all the way back down the supply chain impacting, in turn, food safety?

    Ironically, there is ample supply chain documentation because of food safety commitments, and well documented food safety claims — all the way up the buyers chain — which are routinely made in great detail. None of this fits well with a supplier who is grossly negligent.

    All the certifications in the world may not matter if it can be shown that they had nothing to do with the reality of food safety, which you, as a major buyer, had great influence over, as discussed by Jim Prevor. The paperwork may nail you, not protect you from some responsibility.

    My guess is that there will be new legal waters for the food industry, which may in turn protect future consumers faster than any other pathway to food safety.

  • Perhaps the answer is to have FOURTH PARTY AUDITORS, to scrutinize the efficacy & accuracy of work done by the 3rd party auditors. Then, if subsequent investigations reveal that the 4th party auditors are remiss, then we should consider FIFTH PARTY AUDITORS. This convoluted, overlapping and expensive system is deemed to be necessary because the first and second line of inspection is asleep at the wheel.
    The same is true at USDA-inspected meat & poultry plants. Even in my very small plant, we have an inspector at the plant every day. He has a veterinarian supervisor, who in turn reports to a Front Line Supervisor (FLS). The FLS reports to the Deputy Manager of the USDA District Office, who then reports to the Manager of the District Officer. Food Safety is NOT predicated by the number of layers of supervisors who supervise supervisors who supervise other supervisors. Food safety more depends on (a) willingness of the inspection force to closely scrutinize plant operations, and (b) authority given to the inspection force to take actions when unsanitary conditions are observed.
    Within the meat industry, USDA intentionally deregulated the industry, promising that upon HACCP’s arrival, USDA’s role would change in this fashion:
    1. USDA would embrace a “Hands Off” role.
    2. USDA would no longer police the industry, but that the industry would police itself.
    3. USDA would disband its previous command-and-control authority.
    Subsequently, USDA inspectors and veterinarians have informed me that when they have observed insanitary conditions, including observing visible fecal on carcasses, they have been told to “Let HACCP Work”, and not to interfere, but allow the plant to utilize their HACCP Plans which have theoretically proven that their products will be consistently safe.
    We don’t need multiple overlapping layers of auditors intent on covering their derrieres with a plethora of meaningless paperwork. Frankly, we need one layer of well-trained inspectors/auditors who aggressively scrutinize plant operations, fully authorized to accumulate copious and unrestricted evidence, and to initiate enforcement actions when deemed appropriate. When will we realize that the food industry (meat, fruit, vegetables etc) should NOT be deregulated! For only too many humans, profit trumps food safety.
    We do need inspection oversight, not duplicative layers of auditors whose financial interests are best met by issuing glowing reports of praise to companies who pay them. You pay me enough, I’ll tell you whatever you want.
    John Munsell

  • Sarah

    Regardless of an Act of Congress, those who will bypass rules, still will. This case, involving auditing firms and individuals will be a true wake up call for many in the food industry. As a Director of Quality for a large processor, this case is truly unbelievable to me. Gross and reckless negligence. Get em Mr. Marler!

  • Sam

    The third party audit system is effective and robust in it’s purpose to keep food safe, in the same sense that the Securities and Exchange commission is effective and robust in keeping the financial industry from ruining our economy. Third party audits serve only to line the pockets of the certification bodies themselves. Remember, companies don’t pay for anything; thier customers bear the cost. In effect, the consumer is being forced to pay for a corrupt “food safety” regime that adds no value to the entire supply chain.
    As a professional member of the food industry, I hope and pray that Primus labs is held at least partially liable for damages in the Jensen farms case. Then, maybe, the rest of the industry will wake up, and accept responsibility for keeping our food ssupply wholesome.