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.
“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.