Last week, Eric Jensen, age 37, and Ryan Jensen, age 33, brothers who owned and operated Jensen Farms, located in Granada, 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.
The Information charges the brothers with introducing adulterated food into interstate commerce. According to the six-count Information filed under restriction on Sept. 24, 2013, as well as other court records, Eric and Ryan Jensen allegedly introduced adulterated cantaloupe into interstate commerce. Specifically, the cantaloupe bore poisonous bacteria, Listeria monocytogenes. The Information further states that the cantaloupe was prepared, packed and held under conditions, which rendered it injurious to health. The outbreak sickened over 147 and killed over 33 in 28 states in the fall of 2011. The Jensen’s individually are facing up to six years and $1,500,000 each in jail time and fines.
United States v. Park 421 U.S. 658 (U.S. Sup. Ct. 1975) was decided just a few months after I graduated from High School, and long before I decided (as one food pundit coined), to become the “the Assassin in Armani” – at least to the food industry.
Park is an interesting (and seldom used) case where the Court ruled that Mr. Park, the CEO of Acme International (Acme Markets, Inc., was a national retail food chain with approximately 36,000 employees, 874 retail outlets, 12 general warehouses, and four special warehouses), had failed to comply with the Federal Food, Drugs, and Cosmetics Act (FDCA), to keep conditions within his warehouses sanitary. Rats and rat feces were found in two of the company’s warehouses (on more that one occasion) and the FDA had warned Acme to clean it up. There appears to have been no reported illnesses. At trial Acme pled guilty, but Park claimed he was not personally responsible for the violations. The jury disagreed and he was ultimately fined $50 per violation. The case eventually made its way to the Supreme Court.
In part, the focus of the Court’s opinion was whether “the manager of a corporation, as well as the corporation itself, may be prosecuted under the FDCA for the introduction of misbranded and adulterated articles into interstate commerce.” The Court concluded the answer to be yes. In fact, the Court found that “[t]he Act imposes upon persons exercising authority and supervisory responsibility reposed in them by a business organization not only a positive duty to seek out and remedy violations but also, and primarily, a duty to implement measures that will insure that violations will not occur, … [I]n order to make food distributors the strictest censors of their merchandise, … the Act punishes “neglect where the law requires care, or inaction where it imposes a duty.”
The Court further looked to the purposes of the Act and noted that they “touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection.” It observed that the Act is of “a now familiar type, “which” dispenses with the conventional requirement for criminal conduct – awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.”
Thus, the Court reaffirmed the proposition that “the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors.”
Today a misdemeanor conviction under the FDCA still, 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 $250,000, or both.
My strong suspicion is that those that produce and sell food are now paying attention.
As I said the other day on behalf of my 46 clients, 25 family members of people who died from Listeria and 21 sickened who survived, I was pleased that the US Attorney’s office recognized that some form of criminal sanctions were appropriate against Jensen Farms for sickening over 147 people and killing over 33 in 2011 from tainted cantaloupe grown in Colorado.
That being said, I also urged the US Attorney to consider leveling criminal charges against the retailers, such as Walmart and Kroger, as well. The US Attorney should also consider the same against the auditor, Primus.
These retailers set the specifications for the “fresh fruits” and ignored them. These retailers required audits that they knew full well would generate a glowing inspection all the while ignoring what was there to be seen. These retailers then used their market power to squeeze the supply chain of any profit that could have been invested in food safety.
The relationship between retailers and auditor is simply a conspiracy to keep product flowing through the chain of distribution at the lowest costs, and an attempt to shield retailers from responsibility for the products that they sell.
We will never have safe food from “Farm to Fork” until the entire chain of distribution is held accountable for the food that they make a profit from.
Welcome back Park Doctrine.