UPDATED: FDA promises robust enforcement after Jensens’ sentence - The Packer

UPDATED: FDA promises robust enforcement after Jensens’ sentence

01/28/2014 01:30:00 PM
Coral Beach

Ryan and Eric JensenAPFamily members walk with Ryan Jensen (second from left) and Eric Jensen (far right) following a court appearance in Denver’s Federal Court on Oct. 22, 2013.(UPDATED COVERAGE Jan. 31) As two Colorado cantaloupe growers begin probation for a deadly 2011 listeria outbreak, federal officials say they will move forward with new food safety rules and use their full power to enforce them.

Eric and Ryan Jensen, owners of Jensen Farms, Granada Colo., were the first growers to face this kind of criminal foodborne pathogen case. They each pleaded guilty in 2013 to six federal misdemeanors of introducing adulterated food into the supply chain.

A federal magistrate in Denver sentenced them Jan. 28 to each serve six months home detention and five years probation.

Other growers could face similar situations, based on a comment from Spencer Morrison, the Food and Drug Administration’s acting special agent in charge of the agency’s criminal investigation. Spencer assisted the U.S. Justice Department with its case against the Jensens.

The FDA will continue to use its powers to ensure food safety regulations and laws are followed, Morrison said in a statement issued by the U.S. Attorney’s Denver office after the Jensens’ sentencing.

The agency continues to stress prevention as its weapon of choice, however.

“At FDA our goal is to continue to move forward on the ... rules, so that we can work with farmers and industry to prevent tragic outbreaks like this from happening in the first place,” said Doug Karas, public affairs specialist with FDA’s Coordinated Outbreak Response and Evaluation Network.

In addition to their home detention and probation, the Jensens must each pay $150,000 in restitution to the victims of the listeria outbreak — $25,000 for each of the six counts. They argued against paying restitution because they may be found liable for damages in civil cases filed by victims.

The 2011 outbreak killed as many as 40 people and sickened almost 150 others in 28 states, according to the assistant U.S. Attorney Jaime Pena, who prosecuted the case.

The Jensens could have each faced up to six years in prison and each been fined $1.5 million.

“No fine is imposed because the defendants have no ability to pay a fine,” according to the sentencing order from Magistrate Judge Michael E. Hegarty.

As a special condition, Ryan Jensen agreed to attend a substance abuse program and take drug tests. The judge waived drug testing for Eric Jensen because the presentence report “indicates a low risk of future substance abuse” for him. Both brothers agreed to provide a DNA sample. The brothers also must complete 100 hours of community service.

Prosecutor recommended probation

Hegarty’s sentence order came after the U.S. Attorney’s office and officials from the federal probation and parole office recommended probation.

“These defendants were at worse negligent or reckless in their acts and omissions,” Pena wrote in the government’s recommendation.

The judge noted that several victims spoke during the sentencing hearing, some in favor of probation, some in favor of jail time.

The brothers requested probation, saying they had no intent to harm anyone. They also contend justice has been served because new food safety guidelines have been implemented in the industry.

According to their request, the federal officer who wrote their presentence reports did not find any evidence showing the brothers were aware their operation was substandard.

“Additionally, there is no evidence to suggest that the defendant and codefendant ‘cut corners’ to save money in order to earn a greater profit by installing the new processing equipment,” Eric Jensen’s attorney wrote in the request.

The brothers’ probation request also reference their federal lawsuit against Santas Maria, Calif.-based Primus Group Inc. That case states the Jensens would not have shipped the tainted cantaloupe if their operation had not received a “superior” score of 96 out of 100 when a Primus contractor audited it just before the 2011 season.

The brothers signed their case against Primus over to the 66 listeria victims and their families who have filed civil cases.

Primus Group Inc., Santa Maria, Calif., is named in all of the suits. At least two federal judges and one state judge dismissed Primus from cases under their jurisdiction as of late January.

However, Bill Marler, the Seattle food safety attorney handling the Jensens’ case against Primus — as well as 45 of the 66 victim cases — said he believes many of the cases will go forward. One such case, filed by the family of the late William Beach, is in Oklahoma.

The judge denied, in part, a dismissal request by Primus on Jan. 24. In his order the judge said the wrongful death claim against Primus can move forward because there are sufficient “factual allegations to support that causation exists between Primus Group’s actions and Mr. Beach’s listeria infection and death.”



Comments (2) Leave a comment 

Name
e-Mail (required)
Location

Comment:

characters left

Lope Grower    
IN  |  January, 31, 2014 at 02:21 PM

I think the federal government has not considered the ramifications of prosecuting growers for having "entered adulterated food into interstate commerce." Produce crops are not generally grown in a sterile "plastic bubble" in which contamination is not as probable. Most produce crops are grown in fields exposed to all the bacteria of that environment including pathogens. Due to that reality, produce will tend to be "adulterated" with pathogens. Most growers will adhere to GAP in an attempt to reduce the adulteration and, in those operations that package fresh produce, will also adhere to GMP to reduce the incidence of contamination. HOWEVER, no grower can eliminate all "adulteration" or contamination by bacteria. Therefore, if a grower in GA ships to a chain store warehouse in TN and an FDA random sampling of that produce in TN yields a positive test for pathogenic Salmonella, the FDA will also test the farm at which it was grown. If the same strain of Salmonella is discovered at the farm, then the FDA and DOJ could and, in fairness to the Jensens, should charge the GA grower with "entering adulterated food into interstate commerce." The quality of the grower/packer's food safety program, the adherence of the operation to state and federal food safety statutes, and the fact that no one became ill or died does not negate the fact that this GA grower would be as guilty of the charge as were the Jensens. Therefore, prosecution of the Jensens and future prosecutions as promised by Spencer Morrison will drive produce production to other countries beyond the reach of criminal US DOJ prosecution and inflate consumer prices. Only by refusing to grow fresh produce can a farmer guarantee that he will not face prosecution.

Berry Grower    
Florida  |  February, 03, 2014 at 05:23 PM

Lope Grower is absolutely correct. We have already lost a huge amount of the manufacturing base in this country due to government over regulation and high corporate taxation so are we now going to push the fresh fruit and vegetable industry out also. Growers in the USA produce the safest and highest quality fruits and vegetables in the world. There are, have been , and always will be occasional contamination issues with fresh produce, it's impossible to be perfect. Food safety is extremely important to all of us and the FDA should approach this with a positive attitude geared towards helping us make a good system a little better.

Feedback Form
Leads to Insight