Michael Booth and Jennifer Brown stepped into a conflicted area in their story today – “Criminal charges hard to pin on farm where listeria-tainted cantaloupes originated” – although the headline writers got it wrong.
Although in my opinion the likelihood of felony charges is remote, misdemeanor charges are certainly a possibility. Here is the law:
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.
But another question is fairness. Why criminal sanctions against Jensen Farms or Frontera when we have let many, many bad actors escape? As I said to Mr. Booth and Ms. Brown:
“It would seem unfair to go after the Jensens as an example when you haven’t gone after anybody in 20 years,” Marler said.
But prosecutions even on lighter misdemeanor charges would send a message to large food companies to focus on safety, he added.
“When companies change behavior is when they are held up to public scrutiny,” he said.
My point was that, although there have been a few prosecutions in the last 20 years (some listed in the Denver Post story), and investigations are still ongoing in the Peanut Corporation of America and Wright County Egg Salmonella cases, most cases of foodborne illness are never prosecuted for felony or misdemeanor as I said in a Op-ed on Food Safety News a few months ago – “Publisher’s Platform: Private AG.”
The question is who to prosecute and when to start? Prosecuting the Jensens or Frontera when others have walked seems to me unfair, despite 30 deaths. But, perhaps this outbreak is a good place to start?
I do take slight issue with a sentiment attributed to me in the Post:
The Jensens’ actions don’t appear negligent, said Seattle attorney Bill Marler, representing many cantaloupe victims, but their distributor and auditor, Frontera and PrimusLabs, should tighten standards.
What I said (or intended to say) is that negligence is not the issue – Jensen Farms is strictly liable (as is Frontera) for the mounting illness and death toll due to listeria-tainted melons. Here is the law:
Strict products liability is a “term of art and is intended to reflect the idea that products liability is a discrete domain of tort law, borrowing from both negligence and warranty law. However, it is not fully congruent with traditional tort or to contract law. Strict products liability does not rest on negligence principles alone; rather, it “is premised on the concept of enterprise liability for casting a defective product into the stream of commerce.” In strict products liability cases, “the focus is on the nature of the product rather than the conduct of either the manufacturer or the person injured.” Carter v. Brighton Ford, Inc. (Colo. App. 2010).
Perhaps because all of the above is a bit difficult that prosecutors leave justice to civil litigation? It does keep me busy.