With the recent cases of listeria that have surfaced and the federal investigation of Dole over a listeria outbreak, I thought it might be helpful to republish this 2011 article regarding the Jensen cantaloupe case. Criminal charges continue to be brought against individuals in listeria and salmonella outbreaks, including:
- In 2013, Austin “Jack” DeCoster and Peter DeCoster both faced charges stemming from a Salmonella outbreak caused in 2010 by their Iowa egg farms. The family business, known as Quality Egg LLC, pleaded guilty in 2015 to a federal felony count of bribing a USDA egg inspector and to two misdemeanors of unknowingly introducing adulterated food into interstate commerce. As part of the plea agreement, Quality Egg paid a $6.8 million fine, and the DeCosters paid $100,000 each, for a total of $7 million. Both DeCosters were sentenced to three months in jail.
- In 2014, former Peanut Corporation of America owner Stewart Parnell, his brother and one-time peanut broker Michael Parnell, and Mary Wilkerson, former quality control manager, faced a federal jury. The jury found Stewart Parnell guilty on 67 federal felony counts, Michael Parnell guilty on 30 counts, and Wilkerson guilty of one of the two counts of obstruction of justice she was charged with. Two other PCA employees had already pleaded guilty by that time. Stewart Parnell was sentenced to 28 years in prison, and Michael Parnell was sentenced to 20 years in prison. Wilkerson was sentenced to five years in prison.
These outbreaks, and the long prison sentences that resulted, were avoidable. Hopefully this article will be useful to my colleagues in the fresh produce business and can help avoid a similar situation.
We have been hearing rising concerns about the fate of brothers Eric and Ryan Jensen, and also a fair amount of misinformation about the facts and legal standards surrounding the whole affair. In this post, we explain the facts, the law, and what you can do to avoid a similar fate.
This important case marks a shift in the way the FDA is handling violations. Not long ago, criminal prosecution of individuals was very unusual, and those who were prosecuted received low fines and rarely any jail time. However, as of at least 2010 the FDA has been making it known that it will hold more corporate executives criminally accountable by imposing high fines and jail time. This is the second case this year in which corporate executives are being brought into the criminal justice system for food-related outbreaks.
Jensen Farms was implicated in a 2011 Listeria outbreak that hospitalized 143 people and has been linked to 33 deaths and one miscarriage. The FDA investigation led to Jensen Farms, where FDA investigators sampled cantaloupes at the Jensen packing facility. In a laboratory analysis, cantaloupes sampled were allegedly confirmed positive for Listeria monocytogenes and had PFGE pattern combinations that were indistinguishable from those of the infected patients. PFGE patterns are like fingerprints; each bacteria and its offspring have a unique PFGE pattern. If bacteria are found with an indistinguishable pattern, they likely have a common source. You can also view additional facts alleged in the government’s 404(b) Notice here.
How people viewed the case
Tragic as the outbreak was, many people in the industry initially thought of the incident as civil matter. A common assumption was that the corporate structure of Jensen Farms would likely shield individual employees and officers from criminal liability. Another common assumption was that anyone who was criminally charged would have some kind of personal knowledge or direct responsibility for the state of the cantaloupes.
Usually, these assumptions would be correct, because most criminal prosecutions require that the government prove that the individuals charged had both a guilty mindset (called a mens rea) and personally contributed to the criminal action in some way. However, there is a specific exception to this rule, which applies to certain violations of the Federal Food, Drug, and Cosmetic Act (FDCA).
The information in the Jensen case (which is the document in a criminal case that states the charges against the defendant) states that the government is charging both Eric and Ryan Jensen with six counts of violating the FDCA. The FDCA states that it is prohibited to introduce or deliver “for introduction into interstate commerce … any food, drug, device, tobacco product, or cosmetic that is adulterated.” Title 21 of the United States Code, Section 342(a), provides that food is adulterated if it bears or contains any poisonous or deleterious substance that may render it injurious to health, or it has been prepared, packed or held under insanitary conditions that may have rendered it injurious to health.
To succeed in their case against Eric and Ryan Jensen as individuals, the government has to prove beyond a reasonable doubt that (1) the cantaloupes from the Jensens’ farm were “adulterated,” and (2) each was in a position of authority within the business such that they could have prevented the introduction into interstate commerce of the contaminated cantaloupes.
How can the Jensens be individually prosecuted as criminals?
The U.S. Supreme Court dealt with the issue of whether “the manager of a corporation, as well as the corporation itself, may be prosecuted under the FDCA for the introduction of misbranded and adulterated articles into interstate commerce” in a case known as United States v. Park, 421 U.S. 658 (1975). The court concluded that yes, corporate officers can be criminally prosecuted even if they had no knowledge of the violation.
Mr. Park was the CEO of Acme, a national retail food chain with approximately 36,000 employees, 874 retail outlets, 12 general warehouses, and four special warehouses. Mr. Park’s company had failed to comply with the FDCA by failing to keep conditions within his warehouses sanitary. The FDA had warned Acme to clean it up. (There appears to have been no illness stemming from the violations.) He was ultimately found guilty.
The court’s decision stated that corporate managers “voluntarily” assume the risk of criminal prosecution by accepting responsible positions, stating: “The Act imposes not only a positive duty to seek out and remedy violations when they occur but also, and primarily, a duty to implement measures that will insure that violations will not occur. The requirement of foresight and vigilance imposed upon responsible corporate agents are beyond question demanding and perhaps onerous, but they are no more stringent that the public has a right to expect of those who voluntarily assume positions of authority in business enterprises whose service and products affect the health and well-being of the public that supports them.”
The Park court specifically noted that the FDCA “dispenses with the conventional requirement for criminal conduct – awareness of some wrongdoing.” This is what is known as “strict liability.” In fact, the Court specifically rejected this argument that Mr. Park had delegated the problem to a competent and trusted subordinate. Even though Mr. Park had specifically assigned someone to fix the problem, Mr. Park was still criminally liable.
What does this mean for the Jensens?
Even if the Jensens didn’t actually know that the cantaloupes might be contaminated, the mere fact that they were in the position of authority within the business to correct or prevent the violation can make them guilty.
The government does not need to prove intent or even negligence, in contrast, for example, to the recent PCA peanut butter case. In that case the executives of the Peanut Corporation of America were indicted under a different statute with a felony: introducing adulterated and misbranded food into interstate commerce with the intent to defraud or mislead. The Jensens are each being charged with six misdemeanors, which do not require intent. While it seems a misdemeanor is a relatively minor crime, the Jensens could be sentenced to up to a year for each misdemeanor.
Are there any circumstances that can relieve the defendants from liability?
There are, but they are quite limited. Employees who were “powerless” to prevent or correct a violation can raise that as a defense, and the defendant must present evidence to that effect. The Park case suggests that a jury can convict if it finds that the defendant “had a responsible relation to the situation,” and “by virtue of his position . . . had . . . authority and responsibility” to deal with the situation.
However, it seems this provision would only shield employees who were truly unrelated to the violation. Needless to say, it would be difficult to argue that a corporate officer was truly “powerless” to do anything about a possible violation.
Another defense potential defense is that the defendant took “extraordinary care” to comply with the law. Although this is also a difficult standard to meet, it is within the control of a company’s officers and can be effective.
What does this mean for you?
- Be attentive. High-level executives need to be personally involved in knowing what is going on and taking active steps to correct potential problems. Listen to internal comments and complaints.
- Hire independent, qualified and competent auditors to examine your compliance on a regular basis.
- Make clear to your auditor that you want him/her to apply a reasonably tough standard that is generally accepted. There are many standards – GFSI, SQF, etc., and by definition they all focus on different items. The Jensen brothers had just had the packing facility audited not long before the outbreak. They received a “superior score” of 96 percent. It may not be that the audit was lacking as much as that there was no understanding of the importance of the standard used.
- Document “good faith” attempts to comply with regulatory requirements and to remedy issues that arise.
- Instruct employees in writing that complaints are to be taken seriously.
- Respond in writing and carefully to each internally raised complaint about FDCA matters.
- Executives should demonstrate in writing their commitment to have the company make all reasonable efforts to be in compliance.
- Order in writing that standard operating procedures be written and adhered to.
- Self-audit regularly, then document the results and the steps taken to improve.
Call your lawyer if you suspect there could be a problem. In particular, if you are acting for the corporation, you should call the corporation’s counsel. But because corporate counsel represents the interests of the company, you need to consult with your own attorney.
Tiffany N. Comprés is an attorney at Sandler, Travis & Rosenberg, P.A, and an FFVA trade associate member. Read more about her services and areas of expertise here.