For additional details on this case, please see, "UPDATED: Jensens face federal criminalharges in cantaloupe case"
In less than two months, cantaloupe growers Eric and Ryan Jensen are scheduled to be tried on criminal charges because their fruit was linked to the 2011 listeria monocytogenes outbreak that killed at least 33.
The charges are bringing a debate to the industry. Some say the charges against the brothers aren’t enough and that others in the supply chain are also criminally liable. The Jensens each face sentences up to six years and up to $1.5 million in fines for the six charges they each face.
Others say it’s outrageous the Jensens are facing any charges, that the case signals a mindset within the U.S. Justice Department that could threaten all growers.
Officials with the U.S. Attorney’s office in Denver aren’t saying much, partly because of the shutdown of the federal government. Assistant U.S. Attorney Jaime Pena is prosecuting the case. He declined comment.
Jeffrey Dorschner, spokesman for the U.S. Attorney’s Denver office, said on Oct. 1 that charges against anyone else are “highly unlikely.”
Regarding why the Jensens face misdemeanor rather than felony charges, Dorschner said “the charges filed are the best most appropriate charges given the specific circumstances of this crime.” The applicable federal statute requires the government to prove intent for felony charges, but not for misdemeanors.
The lack of a need to prove the Jensens intentionally sent contaminated cantaloupes into commerce is a troubling point for growers of all commodities as far as one cantaloupe safety expert is concerned.
Trevor Suslow, University of California-Davis extension research specialist in preharvest to postharvest produce safety, said criminal charges of any level are excessive, “as they have not been applied to seemingly more egregious cases of adulteration in the past that did not result in this action.”
The Jensen case marks the first time for growers to face criminal charges in relation to a foodborne illness outbreak.
“I cannot agree with statements that the Jensens should have known that these (a lack of chlorine and no pre-cooling) were deficiencies in their standards of care for food safety of cantaloupes,” Suslow said. "If everyone tells you that everything is great and in good shape why would you question what you are doing?"
Suslow said he is concerned about the signal the justice department is sending. He said he does not question the need for high standards of food safety requirements and agrees that pre-cooling and sanitizing washes are part of that for some cantaloupe, but he doesn’t believe the grower only should be liable.
“If the near-term standard for due diligence is that every farmer has a personal working knowledge to conduct a microbiological hazard analysis and operational risk assessment sufficient to prevent criminal charges if adulterated product enters the market, regardless of root-cause, we are all in big trouble,” Suslow said.
The justice department cites a number of deficiencies at the Jensens outdoor packing facility.
According to inspection reports from the Food and Drug Administration, those deficiencies include water pooling on floors, dirt and plant material on equipment, a floor that was difficult to clean, inadequate trench drains and equipment that could not be properly cleaned.
“… it is likely that the contamination occurred in the packing facility,” the FDA report states. “It is also likely that the contamination proliferated during cold storage.”
The FDA inspectors reported all samples from the growing field were negative for listeria monocytogenes. The samples included soil, wild animal excrement, perimeter and furrow drag swabs, agricultural water, pond water and cantaloupes.
In its conclusion that the Jensens cantaloupe was contaminated in the packing shed, the FDA pointed to a possible contamination source.
“Another potential means for introduction of listeria monocytogenes contamination into the packing facility was a truck used to haul culled cantaloupe to a cattle (feeding) operation,” the FDA report states.
“This truck traveled to and from a cattle operation and was parked adjacent to the packing facility where the contamination may have been tracked via personnel or equipment, of through other means into the packing facility.”