UPDATED: Jensens face federal criminal charges in cantaloupe case

09/26/2013 02:37:00 PM
Coral Beach

For additional details on this case, please see "Growers likely to stand alone in cantaloupe deaths case"

(UPDATED COVERAGE 6 p.m.) Federal charges against cantaloupe growers Eric and Ryan Jensen mark the first time produce and food safety experts recall criminal charges against a grower in relation to a foodborne illness outbreak.

The Jensen brothers surrendered to federal authorities Sept. 26 in Denver, according to a statement from U.S. Attorney John Walsh. A Dec. 2 trial date is set for the case. The brothers each posted bonds of $100,000 and were released, said Jeffrey Dorschner, spokesman for the U.S. Attorney’s office in Denver.

This Jensens are each charged with six misdemeanor criminal counts related to the 2011 cantaloupe-related listeria outbreak that killed at least 33 people and sickened 147 in 28 states.

The case marks the first time Bob Whitaker, chief scientific officer for the Newark, Del.-based Produce Marketing Association, recalls growers facing criminal charges in an outbreak.

“It has always been out there as a possibility,” he said.

Whitaker said the Food Drug and Cosmetic Act of 1938 prohibits food marketers from sending product to the marketplace that has an adulterant, and pathogens are considered adulterants. However, legal activity aimed at growers surrounding foodborne outbreaks in produce have been limited to civil lawsuits, he said.

Similarly, Seattle food safety attorney Bill Marler, who represents dozens of people sickened in the 2011 cantaloupe outbreak, said the criminal charges are not the norm.

“In 20 years of food safety law experience I do not recall a grower facing federal criminal charges in relation to an outbreak,” Marler said.

The Denver U.S. Attorney’s staff visited Marler’s offices in 2013 and collected copies of the attorney’s files on Jensen cantaloupe-related deaths.

If convicted on all six misdemeanor criminal counts, each of the brothers face a maxiumum of six years in prison and $1.5 million in fines each. The charges are for allegedly introducing adulterated cantaloupe into interstate commerce and aiding and abetting.

Special Agent in Charge Patrick Holland of the FDA Office of Criminal Investigations, Kansas City Field Office, said in the U.S. Attorney’s news release that “the filing of criminal charges in this deadly outbreak sends the message that absolute care must be taken to ensure that deadly pathogens do not enter our food supply chain.”

The case against Jensen Farms

Court documents in the case say the cantaloupe growers knew their fruit was possibly contaminated and that it needed to be washed before being packed and distributed.

The case information states the Jensens bought used potato packing equipment from Pepper Equipment Co. in May 2011. The Jensens had Pepper Equipment modify the packing machines so a pan could be attached to allow the cantaloupes to be bathed in a chlorine spray.

However, according to the case information, the Jensens did not hook up the spray wash.

“Investigation by the FDA and the Center for Disease Control determined that the defendants failed to adequately clean their cantaloupe” the government’s information states.

Jim GornyJim Gorny, PMA’s vice president of food safety and technology, is quoted in government’s case information against the Jensen brothers. He was senior advisor for produce safety at the FDA’s Center for Food Safety and Applied Nutrition at the time of the outbreak and the federal investigation.“Their actions allegedly resulted in at least six shipments of cantaloupe contaminated with listeria monocytogenes being sent to 28 different states. Ten additional deaths not attributed to listeriosis occurred among persons who had been infected by eating outbreak-related cantaloupe.”

Jim Gorny, PMA’s vice president of food safety and technology, is quoted in government’s case information against the Jensen brothers. He was senior advisor for produce safety at the FDA’s Center for Food Safety and Applied Nutrition at the time of the outbreak and the federal investigation.

“According to James Gorny, … Jensen Farms significantly deviated from industry standards by failing to use an anti-microbial such as chlorine in the packing of their cantaloupes during the summer of 2011,” the case information states.

“Gorny added that the conveyer used in the process spread contamination and essentially ‘inoculated’ the cantaloupes with listeria monocytogenes. Dr, Gorny opined that the Primus Labs subcontractor that conducted the pre-harvest inspection of Jensen Farms was seriously deficient in their inspection and findings.”

National Editor Tom Karst contributed to this report.



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John    
Florida  |  September, 26, 2013 at 03:53 PM

I cannot fathom how they possibly could have thought it a good idea to not use chlorine in their washing system. Was it not recirculated water? If the wash water was recirculated, there is ZERO excuse for not using some sort of antimicrobial in the water to prevent cross contamination.

Scott    
Illinois  |  September, 27, 2013 at 10:23 AM

I do believe the time has come for real action to improve our food safety practices, and criminal charges may be needed to accomplish this. If we simply look to global best practices the solutions are readily available and inexpensive. A good example is the proven use of Ozone in place of Chlorine. It's up to us as industry leaders to fix this and the time is now.

Thomas    
McAllen  |  September, 27, 2013 at 09:14 AM

Why isn't Primus Labs mostly responsible for this? Jensen paid Primus to do an inspection audit. Primus should have caught this and told them to correct it.

Frank    
Ohio  |  September, 27, 2013 at 09:31 AM

The issue is whether or not they KNOWINGLY shipped product that was contaminated. Primus should be on the hook as well if the issue was so blatantly obvious, and it wasn't audited properly. Growers(and processers)who make little effort to keep their product free from contamination are the reason there are increasing illnesses in the produce industry and everyone else is forced to incur audits and government inspections. There is an OBVIOUS responsibility to the consumer when you grow food(no matter the size of your farm). All this said, Jensen Farms has a right to their day in court to clarify their position and defend their choices.

Blair    
Oklahoma  |  September, 27, 2013 at 09:35 AM

I wonder why Primus is being held responsible for their inaction as well? Surely their inspectors knew the equipment was faulty. Both Primus and the Jensens dropped the ball on this and both should be held accountable.

Charlie    
California  |  September, 27, 2013 at 09:47 AM

Failing to adequately wash the cantaloupes? You cannot wash pathogens completely off of cantaloupe or any other fruit. If the arrests were because the Jensen brothers knew that their fruit was contaminated with Listeria monocytogenes, that makes sense. If the arrests were made because of failure "that absolute care must be taken to ensure that deadly pathogens do not enter out food supply chain," does that mean that arrests will be conducted for every fatal product liability case? If so, I wouldn't want to work in the automobile industry. Dr. Gorny was absolutely right about them inoculating their entire production though cross contamination on the packing line. The article says that the government states that "the defendants failed to adequately clean their cantaloupe." This is very different from Dr. Gorny's assessment. Cleaning was not the problem. Cross contamination was. If the arrests were because the Jensen brothers knew they had tainted cantaloupe, that makes sense. If it was because they caused an outbreak through ignorance, tragic as it was, this is a precedent that could have enormous implications in the industry.

Allen    
September, 27, 2013 at 10:01 AM

There is no absolute law in place that chlorine(anti microbial) is to be used. Scientifically it may or may not have reduced the listeria. Listeria is one the hardest to kill. Primus is not guilty of anything. They did an audit. They are not a enforcement arm. There is no law that requires Primus and or any other auditing firm to shut down a facility. All they can do is observed and document the actions. The auditor could not have seen the Listeria nor are they required to test on the day of the audit(not one firm does this). And if they did it does not give them the right to shut a company down. The auditor noted the defenciencies. Plus if you have never done an audit or been in one, the auditor is not allowed to consult or tell the operation to change or alter a program. Its only job is to note the findings. If Primus would have failed Jensens audit would the outcome be different? NO. This is a unfortunate accident and unfortuantely the federal government has gone again jumped off into it. If you are a grower or shipper of produce this is a nightmare coming true. Do you really wanna grow produce knowing if one person dies you could go to jail? Yet how many people die yearly from alcohol? Do you see a Busch family member in jail? NOPE. The Jensens have suffer and will continue to suffer from this tragic incident. Jail time is not the answer. Do your homework people before you speak or write in this case

tom    
toledo  |  September, 27, 2013 at 11:30 AM

Intentional(if it was) negligence by one impacts the whole industry. The article states "industry standards were not followed". Apparently, none of the 33 who died were your friends or family. If primus had failed them due to an obvious lack of GAP's, it could have raised a red flag for the owners and gotten it corrected. It also would have protected primus. Yes, it's an awful nightmare...that should stand as a reminder of the responsibility to provide safe food for the consumer. Seriously, they most likely won't go to jail, but it certainly has gotten the general growing industry to take a look at themselves. When do the deaths in other industries excuse the deaths in the produce industry???? Where did that come from?

Lisa A    
WA  |  September, 27, 2013 at 11:35 AM

I agree that the question is whether or not they knew the cantaloupe was contaminated and sent it into the marketplace without any attempt at decontamination. However, the statement, “the filing of criminal charges in this deadly outbreak sends the message that absolute care must be taken to ensure that deadly pathogens do not enter our food supply chain.” is a dangerous one for farmers and packers across the nation. Once a precedent is set, this statement can and will be used in a multitude of situations based on interpretation. The words "absolute care" and "do not enter our food supply" are extremely critical.

Allen    
September, 27, 2013 at 12:07 PM

Tom, Again you have not done your research. Obvious, as you say, laps in GAPs, which this was not(this occurred in the GMP portion), are not issues to stop and or fail the producer. This is not just a standard of Primus yet a standard set forth by FDA and ISO 65 and of other ISO schemes that allow the producer to make their own decisions. Does field packed make it safer? Google any Ph.D. that has done scientific test on the reduction of listeria with chlorine and or PAA. There is scientific evidence there is at best minimal reductions of the pathogen. Far as INTENTIONAL, do you really believe the Jensen brothers set out to kill 33 people, thats crazy. The red flag would be raised if the industry standard (FDA and ISO and all other schemes) was law and made as a automatic failure and automatic shutdown. The law now doesn't mandate and yes industry does use (antimicrobial) yet this is listeria (1st time ever discovered, see Ph.Ds. The deaths indicated is again the hypocrisy of our government involved. Its ok for alcohol to be produce and cause death (because our lawyers like their drink). Its not to take away from the deaths that occurred. Next time you get sick eating out be sure to sue all involved including yourself for going out to eat.

Allen    
September, 27, 2013 at 12:27 PM

We have the safest food in the world. But this is all a joke trying to blame the auditing firm and the seller and the store that sold it. Common practice as was stated should extend to the consumer as well. Did they wash their fruit before they ate(common knowledge, right?). Also I ll raise the issue of where is the audit for Krogers, Walmart and other stores involved? Where is the audit for their distribution centers? Where is their food safety plan for each end cap display of melons that every kids wipes their little dirty snot ridden hands on?

joe    
florida  |  September, 27, 2013 at 01:24 PM

why is it that the feds can go after American growers, but not the Mexican growers that sickened the people with their jalapanios but killed the florida tomato growers season?

tom    
toledo  |  September, 27, 2013 at 03:01 PM

I don't think it's OK for alcohol to cause deaths; neither does society. Check with MADD. Everyone wants to place accountability and blame for everything. Some things are accidents in the truest form(lightning strike); but when one's choices and decisions (seriously drunk driving; or running an unsanitary processing line with indifference)put others in harms way, doesn't responsibility apply?? The innocent until proven otherwise Jensen brothers will have the right to defend themselves against the misdemeanor charges if they don't throw them out. They will hire the same attorneys that get everyone else off and they will never go to jail. They will just spend a lot of money. Then justice will be served to the benefit of the judges and attorneys. It is truly a sad commentary on our society....sue yourself, that's a good one.

Andres    
Hidalgo  |  September, 27, 2013 at 04:50 PM

My sympathy goes for the families of the deceased. Living on the border with Mexico has taught me not to be complacent. I truly believe that convicting the Jensen Brother in court wouldn't do any good in bringing any of decesed back to life. I also believe that any produce grown on ground level like cilantro,carrots,potatoes, squash, melons, etc, have the potential for contamination. That's why the end consumer has the upmost responsibility of disinfecting their own produce. One tablespoon of clorox in one gallon of water and allow soaking for 10 minutes and then rinsing is all that's needed. The problem is that we have become a country that expects everything to be done for ourselves. Produce can be contaminated anywhere and everywhere, whether in the growing, shipping or distribution supermarket chain. If everyone does their part and is responsible for themselves and not rely on package salads, shredded carrots,diced salsa and pre-made guacamole, then none of this would happen. Washing these meolons in a clorox solution at home before being consumed would of saved all the lives and avoided all the problems. We need to wake up and realize that at the end of the day when it come to produce, everyone is responsible for themselves and not rely on primus, the federal government or fda to ensure our food safety.

Allen    
September, 27, 2013 at 04:56 PM

Tom. If you and I sat down and drank a beer (hahaha) together we would agree on this subject more than it seems here in these post. For sure we agree on the fact no one wins but the blood thirsty lawyers. Andres. Great post. Common sense at its fineness. Hopefully the jury see it this way for the Jensens

Joshua    
Florida  |  September, 27, 2013 at 06:04 PM

Primus Lab's auditors are only there to observe practices, and decide if it is within the scope of acceptable practices as deemed by the audit scheme on the day of the audit only. The auditor noted this atypical practice (no antimicrobial in recirculated water) in the audit report; the broker/buyer should have read the audit, and thought maybe that was not a good practices, we should have these practices changed or we will not purchase from this supplier. The auditor is not there to do consulting work for the company.

Bill    
CA  |  September, 27, 2013 at 06:08 PM

Ozone is not proven for use as a wash water for cantaloupe. A microbial with CL, CL2, or PAA, would be more effective.

Joshua    
Florida  |  September, 27, 2013 at 06:15 PM

Allen: I agree with everything you say, and obviously you are close to the industry, but blaming the largest retailers of produce does not solve anything. All Kroger facilities (production and warehousing) are audited to GFSI standards. Individual stores are the responsibility of the local county health department. If any consumer has a issue with the stores keeping obviously bad product and trying to sell it, they need to complain to the health dept. I know for a fact that Indiana, Colorado, Georgia, and Florida have been very aggressive in making sure the retail stores sale acceptable product.

Allen    
September, 28, 2013 at 09:23 AM

Joshua You are correct in your statements the Kroger Corp is making an effort. I wish I lived closer to a Krogers. Unfortunately I only have Walmart nearby and they are absolutely horrible. There needs to be a complete program in place. Literally farm to fork(farm responsibility and personal responsibility) And this includes the FDA. They need to make law that is specific not vague. I understand common practice (as the law of the land) but the FDA needs to take responsibility in this as well(hahaha like that is gonna happen).

Kurt Jennet    
Virginia  |  September, 28, 2013 at 01:10 PM

No we do not need a Farm to Fork Government Regulation. When a bureaucracy as huge as the Federal Government becomes involved things become unworkable. When trade groups and other lobbyists become involved things become unworkable. When consumers stop buying cantaloupes because they are afraid of Listeria industry standard will change.

Mario    
September, 30, 2013 at 04:24 PM

Thank you for this comment. It is exactly what has been going through my head while i scroll down and read the comments. The purpose of an audit is changing and changing in a bad way. I care less about a score, I care more about the comments and the actual corrective actions that were taken.

Thomas    
Texas  |  September, 30, 2013 at 04:32 PM

Allen, I am curious as to what type of work you do?

Thomas    
Texas  |  October, 03, 2013 at 08:50 AM

A leading foodborne illness attorney says the retailers and auditor involved with Jensen Farms should be held accountable too. http://www.growingproduce.com/article/36133/attorney-says-listeria-liability-should-be-shared-in-tainted-cantaloupe-case?utm_source=SilverpopMailing&utm_medium=email&utm_campaign=AVG%20eNews%20Oct%202%202013%20OPENED%20(1)&utm_content=

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