Criminal prosecutions in food cases have been quiet for the last few years.

Outbreak 2: The recent multistate investigation began on April 2, 2019, when CDC’s PulseNet identified the Salmonella Carrau outbreak. As of April 24, 2019, 117 people infected with the outbreak strain of Salmonella Carrau have been reported from 10 states – Minnesota, Iowa, Missouri, Michigan, Illinois, Wisconsin, Indiana, Ohio, Kentucky and Alabama.

Illnesses started on dates ranging from March 4, 2019, to April 8, 2019. Ill people range in age from less than one to 98 years, with a median age of 53. Fifty-eight percent are female. Of 88 people with information available, 32 (36%) have been hospitalized. No deaths have been reported.

Epidemiologic and traceback evidence indicate that pre-cut melon supplied by Caito Foods LLC of Indianapolis, Ind. is the likely source of this multistate outbreak.

Outbreak 1: Less than a year ago, on July 24, 2018, the CDC reported that 77 people infected with the outbreak strain of Salmonella Adelaide were reported from nine states – Arkansas, Florida, Illinois, Indiana, Kentucky, Michigan, Missouri, Ohio, Tennessee.

Illnesses started on dates ranging from April 30, 2018, to July 2, 2018. Ill people ranged in age from less than 1 year to 97, with a median age of 67. Among ill people, 67% were female. Out of 70 people with information available, 36 (51%) were hospitalized. No deaths were reported.

Epidemiologic and traceback evidence indicated that pre-cut melon supplied by the Caito Foods, LLC of Indianapolis, Indiana was the likely source of this multistate outbreak.

So, what about criminal sanctions? Could a person in a “position of responsibility or authority in a firm” above face criminal sanctions? Perhaps. Should they? That is a debate to have. It would make me nervous if I sat in a position of authority in one of the companies above or one of their suppliers.

By way of background, in 1938 Congress passed the Federal Food, Drug, and Cosmetic Act (FDCA) in reaction to growing public food 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, including food, 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. Chapter III of the Act addresses prohibited acts, subjecting violators to both civil and criminal liability.

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 years in jail and millions in fines or both. The key here is an intentional act.

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 – prevented the tainted product from entering interstate commerce. Again, unlike a felony and misdemeanor charge is a crime with no intent.  Convictions under the misdemeanor provisions are punishable by not more than one year or fined not more than $250,000, or both.

The past as a guide? Here are four cases where prosecutors brought criminal charges – the first three are misdemeanor charges and the last a felony charge:

• In 1998 in what was the first criminal conviction in a large-scale food-poisoning outbreak, Odwalla Inc. pleaded guilty to violating Federal food safety laws and agreed to pay a $1.5 million fine for selling tainted apple juice that killed a 16-month-old girl and sickened 70 other people in several states in 1996. Odwalla, based in Half Moon Bay, California pleaded guilty to 16 counts of unknowingly delivering ”adulterated food products for introduction into interstate commerce” in the October 1996 outbreak, in which a batch of its juice infected with the toxic bacteria E. coli O157:H7 sickened people in Colorado, California, Washington and Canada. Fourteen children developed a life-threatening disease (hemolytic uremic syndrome -HUS) that ravages kidneys. At the time, the $1.5 million penalty was the largest criminal penalty in a food poisoning case.  Odwalla also was on court-supervised probation for five years, meaning that it had to submit a detailed plan to the food and drug agency demonstrating its food safety precautions and that any subsequent violations could have resulted in more serious charges.
• In 2012 Eric Jensen, age 37, and Ryan Jensen, age 33, brothers who owned and operated Jensen Farms, a fourth generation cantaloupe operation, located in Colorado, presented themselves to U.S. marshals in Denver and were taken into custody on federal charges brought by the U.S. Attorney’s Office with the Food and Drug Administration – Office of Criminal Investigation. According to the six-count indictment, Eric and Ryan Jensen unknowingly introduced adulterated (Listeria-tainted) cantaloupe into interstate commerce. The indictment further stated that the cantaloupe was prepared, packed and held under conditions, which rendered it injurious to health.  The outbreak sickened over 147, killing over 33 in 28 states in the fall of 2011.  The Jensen’s faced up to six years in jail and $1,500,000 in fines each. The eventually pleaded guilty and were sentenced to five years probation.
• In 2013, Austin “Jack” DeCoster and his son, Peter DeCoster, both faced charges stemming from a Salmonella outbreak caused by their Iowa egg farms in 2010.  The Salmonella outbreak ran from May 1 to November 30, 2010, and prompted the recall of more than a half-billion eggs. And, while there were 1,939 confirmed infections, statistical models used to account for Salmonella illnesses in the U.S. suggested that the eggs might have sickened more than 62,000 people. The family business, known as Quality Egg LLC, pleaded guilty in 2015 to a federal felony count of bribing a USDA egg inspector and to two misdemeanors of unknowingly introducing adulterated food into interstate commerce. As part of the plea agreement, Quality Egg paid a $6.8-million fine and the DeCosters $100,000 each, for a total of $7 million.  Both DeCosters were sentenced to three months in jail. They are appealing the jail sentence.
• In 2015 ConAgra Foods agreed to plead guilty and pay $11.2 million in connection with the shipment of Salmonella contaminated peanut butter linked to a 2006 through 2007 nationwide outbreak of that sickened over 700. ConAgra signed a plea agreement admitting that it unknowingly introduced Peter Pan and private label peanut butter contaminated with Salmonella into interstate commerce during the 2006 through 2007 outbreak.
• In 2014 former Peanut Corporation of America owner Stewart Parnell, his brother and one-time peanut broker, Michael Parnell, and Mary Wilkerson, former quality control manager at the company’s Blakely, Georgia, plant, faced a federal jury in Albany, Georgia. The 12-member jury found Stewart Parnell guilty on 67 federal felony counts, Michael Parnell was found guilty on 30 counts, and Wilkerson was found guilty of one of the two counts of obstruction of justice charged against her. Two other PCA employees earlier pleaded guilty. The felony charges of introducing adulterated food into interstate commerce, “with the intent to defraud or mislead,” stemmed from a 2008 to 2009 Salmonella outbreak that sickened 714 and left nine dead. Stewart Parnell is now spending 28 years in prison and Michael 20. Mary Wilkerson is going to jail for 5 years.

If I was Caito, I would be nervous.