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Attorney Says Listeria Liability Should Be Shared In Tainted Cantaloupe Case

Avatar for Paul Rusnak Posted by Paul Rusnak|October 1, 2013

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In a recent blog post in the Food Poison Journal, William Marler, a leading foodborne illness attorney, agrees with the U.S. Attorneys office that criminal sanctions were appropriate against brothers Eric and Ryan Jensen of Jensen Farms. In 2011, at least 147 people got sick and 33 people died from consuming the farm’s listeria-tainted cantaloupe that entered the marketplace. 

Last week, the brothers were charged with six counts of introducing adulterated food into interstate commerce and aiding and abetting. 

Marler went on to say that he urges the U.S. Attorney to consider bringing criminal charges against the retailers involved and the auditor. “These retailers set the specifications for the ‘fresh fruits’ and ignored them,” he explained in the blog post. “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.” 

Ultimately the entire food chain needs to be held accountable, but could these criminal charges against the grower — or potentially those in the distribution chain — set a dangerous precedent? Read more on why this could hurt growers and damage the locally grown movement.

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Paul Rusnak is the Senior Online Editor of American Vegetable Grower, American Fruit Grower, and Greenhouse Grower magazines, all Meister Media Worldwide brands. He is based in Northeast Florida. See all author stories here.

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Avatar for mary mary says:
October 3, 2013 at 7:15 am

If we don't send thousands of comments on the FSMA regs by Nov. 15 we will lose ANY chance to be heard. I think one of the goals of this is to cripple the buy local movement just as we are reaching critical mass.

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Avatar for Florida Sunshine Florida Sunshine says:
October 3, 2013 at 7:54 am

And I reiterate. Where are the government inspectors? The buck stops with the government if you ask me.

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Avatar for Brenda Jackson Brenda Jackson says:
October 3, 2013 at 8:50 am

You can't blame the auditor! If the brothers knowingly shipped these melons, then burn them at the stake; Taking the auditor down only fattens the wallets of the lawyers. The government only steps in after the fact, as always. The retailers should be charged for squeezing the supply chain, but that has been going on for decades. I don't see or know of any possible solutions except that everyone must do everything they can to produce safe food. The responsibility belongs to everyone involved from the driver of the tractor to the consumer.

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Avatar for FrankFLG FrankFLG says:
October 3, 2013 at 8:51 am

Mary You are spot on about the need to comment on Food Safety Regs. As of two weeks ago, about 1,064 comments had been made on the rules. Of those, 1,030 were from consumers, not farmers. I heard this last during a food safety panel at the FFVA Convention in Florida.

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Avatar for Matt Matt says:
October 3, 2013 at 10:18 am

Hi Mary, I don't think this has anything to do with the buy local movement. I think it has to do with undermining the total fresh produce market in the United States for all but the very largest of producers, who enjoy economies of scale that make these new food safety measures an economic drop in their profit bucket. Someone growing hundreds or thousands of acres of muskmelon is going to be in a much better position to afford more inspections, paperwork, etc. They will not be able to watch every acre closely no inspect each piece of fruit like a small grower so they will happily rely on automated techniques, paperwork, auditors, etc. Most of this will have ZERO impact on food safety AT THE FARM. The FSMA attempts to blame the producer for all food safety problems. Zero are ZERO regulations for the distributor, retailer nor safe handling requirements for consumers. How many times have you been to the grocery and picked up some of the produce in the produce department to find rotten or moldy produce in the catch trays? Most people do not look. I worked in a grocery store for 14 years, at the end as a manager. When the produce coolers are due for a cleaning it is NOT done while the store is open. Those coolers are NASTY when they are being cleaned. Pressure washers and some strong disinfectants are used. I would not be surprised if some pretty nasty bugs could be introduced directly in the store from either dirty shelves, sick customers, people bringing pets into the store, etc. MOST farmers, from the small local guy to the large producer are doing everything financially possible to grow the safest food possible. Once it leaves the farm we should be absolved of any responsibility for the produce. What happens though is that everyone past the farmer points their finger BACK at the farmer if there is contamination of the product. Locally small producers who sell locally are actually much SAFER and EASIER to trace than the large country wide or global shippers. Any food safety problems will be limited to their local area. The FSMA will add THOUSANDS of dollars of extra expense to small producers. I am talking about those SELLING 100K or less in produce (That is NOT profit, but gross sales). There just is NOT enough profit in food production to absorb these substantial increases in regulatory compliance. This new financial burden will drive many small producers out of food production OR they will just operate illegally. For these reasons I believe the FSMA is being supported and driven by the largest producers to detriment of the smaller producers (not the buy local movement).

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Avatar for Montana Farmer Montana Farmer says:
October 3, 2013 at 11:20 am

One of the best things you can do is contact Sen. Jon Tester. He is very supportive of the local movement and has already successfully introduced amendments to the Farm Bill (that never passes) supportive of small, local and organic growers.

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Avatar for Gustaaf van der Feltz Gustaaf van der Feltz says:
October 3, 2013 at 11:30 am

The best sulution to get rid of Listeria is using Listex P100. It's inexpensive,does not alter properties like taste color structure. Listex is FDA approved and easy to use Gustaaf van der Feltz [email protected]

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Avatar for Indiana Farmer Indiana Farmer says:
October 3, 2013 at 7:11 pm

Regarding the question at the end of this article: To those of us growing produce crops, this seems particularly frightening. Apparently, the federal government intends to convict the Jensen brothers of entering "adulterated" cantaloupe into interstate commerce. They are charging the brothers with this misdemeanor because they are not required to prove intent or that the product was deliberately "adulterated" as would be required if the brothers were charged with a felony. They also paln to demonstrate in court that the brothers were aware of the fact that the cantaloupe was adulterated. If the Jensens had the requisite intelligence to be profitable farmers, then, yes, they would have been aware that ANY object exposed over time to an unsterile environment would be adulterated (or contaminated) with some bacteria. The purpose of GAP and GMP, contrary to the ideas of many consumers, is NOT to ensure that the product is unadulterated by bacteria. This would involve applying sterile technique within a sterile environment (which does not exist in any farmer's fields or most other parts of the food chain including the consumer's home). The purpose of GAP and GMP is to prevent cross contamination of product while attempting to reduce the number of pathogens in order to reduce the potential for epidemics. If the government is only required to prove that the product was "adulterated" with bacteria (some of which could have been pathogenic and, in this instance, was pathogenic)and/or that the Jensens could reasonably be assumed to be aware that the cantaloupe had bacteria on the surface, then, not only will the brothers spend time in prison, but every other produce farmer is culpable as well. Unfortunately, with such low standards of proof of culpability, the only recourse for produce farmers to provide 100% certainty that they can avoid prison is to stop growing produce. The ramifications of that response to the consumer would be huge.

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