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Eric Jensen, 37, right and Ryan Jensen, 33, brothers who owned and operated Jensen Farms,  arrive at the federal courthouse in Denver, on Tuesday, Oct. 22, 2013, with family. The two Colorado farmers whose cantaloupes were tied to a 2011 listeria outbreak that killed 33 people pleaded guilty on Tuesday to misdemeanor charges under a deal with federal prosecutors. (courtesy Ed Andrieski/Associated Press)

Eric Jensen, 37, right and Ryan Jensen, 33, brothers who owned and operated Jensen Farms, arrive at the federal courthouse in Denver, on Tuesday, Oct. 22, 2013, with family. The two Colorado farmers whose cantaloupes were tied to a 2011 listeria outbreak that killed 33 people pleaded guilty on Tuesday to misdemeanor charges under a deal with federal prosecutors. (courtesy Ed Andrieski/Associated Press)

Cantaloupes were raised and sold to outlets in several states by a family farm in Colorado; thirty-three people died who ate these fresh melons, and many more were hospitalized. The agent of this death and disease was identified as a bacterium, Listeria monocytogenes.

Authorities say that the farm used ill-suited packing equipment and the cantaloupes were not subject to a sufficient cleaning system. And a chlorine spray was not used. However, the firm had successfully passed a private food-safety audit some weeks before the ill-fated shipments of cantaloupes.

This food safety incident occurred in 2011. The melon farm was then owned and operated by brothers Eric and Ryan Jensen, but is now out of business.

What should be done?

In the past, for such a food safety case, our civil litigation system would have been the primary way to determine responsibility and assess money damages. An injured plaintiff would file suit, prove harm and causation in court, and recover against a legally responsible defendant.

And, of course, an official regulatory agency with jurisdiction, such as the U.S. Food and Drug Administration or a state health department, would also conduct an investigation, ascertain the facts, and impose civil penalties that might be available and appropriate.

So, the family farm in Colorado is gone, its reputation ruined, and its owners broke. What now?

The federal government chose on September 26, 2013, to file six criminal misdemeanor charges against the two brothers. They faced up to one year in jail and a fine of $250,000 per charge. To avoid going to trial, the Jensen brothers negotiated with federal prosecutors and in October pled guilty to the charges. (Plea deals are often struck by criminal defendants, especially those from the business community, to lessen ultimate penalties, avoid additional negative publicity, and halt the gusher of funds spent on defense attorneys.)

To my knowledge, this is the first time the federal government has used the criminal law to go after a family farm in such a food safety situation. This is not a case of intent to poison people or one of purposefully using dangerous ingredients. This is not a violation of a commodity-specific food-safety standard, one previously set by government. This is not a case of observable defects, since the bacteria in question are too small for the human eye to see.

No intent to do harm

How can the criminal law be used when there appears to be no intent to do harm?

To understand the current situation, it is useful to read the U.S. Supreme Court case of United States v. Park (421 U.S. 658) decided in 1975. In that leading case, a large national food chain was found criminally guilty of violating the Food, Drug, and Cosmetic Act by shipping adulterated food into interstate commerce. It seems that rats were frequently found in its food warehouses. The president of the firm, who said he didn’t know about the rats, ultimately was fined $50 for each misdemeanor charge.

Here are comments by Chief Justice Warren Burger in the court ruling:

1) “Cases under the Federal Food and Drugs Act of 1906 reflected the view that knowledge and intent were not required to be proved in prosecutions under its criminal provisions.”

2) ” the public interest in the purity of its food is so great as to warrant the imposition of the highest standards of care on distributors.”

3) “The Act does not make criminal liability turn on ‘awareness of some wrongdoing’ or ‘conscious fraud.’ The duty imposed by Congress on responsible corporate agents is, we emphasize, one that requires the highest standard of foresight and vigilance, but the Act, in its criminal aspect, does not require that which is objectively impossible.”

I prefer a quote taken from the dissenting opinion written by Justice Potter Stewart:

“We deal here with a criminal conviction, not a civil forfeiture. It is true that the crime was but a misdemeanor and the penalty in this case light. But under the statute even a first conviction can result in imprisonment for a year, and a subsequent offense a felony carrying a punishment of up to three years in prison. So the standardless conviction approved today can serve in another case to support a felony conviction and a substantial prison sentence. However highly the Court may regard the social objectives of the Food, Drug, and Cosmetic Act, that regard cannot serve to justify a criminal conviction so wholly alien to fundamental principles of our law.”

Troubling

This use of the criminal law in the Colorado cantaloupe case is troubling. Absent egregious circumstances, do we really want to have every fruit and vegetable grower and packer exposed to a jail term if a customer later becomes ill due to unseen bacteria or other such human pathogen?

In the fresh produce industry, there is no kill step for human pathogens. Even with the best systems in place, there will be the rare cases of illnessand even deathwhen fresh produce is consumed. While some products, such as tree fruits, are safer than others, there are no risk-free absolutes.

It does not take much foresight to see there will be much less cooperation by fruit and vegetable farmers and packers with public health authorities when a food safety outbreak does occur if a jail sentence might be in the cards. Even in the absence of an outbreak, will farmers continue to willingly share pathogen-testing data? Will they continue to welcome university food safety researchers on their grounds? In the future, will they drop everything to cooperate with a federal food inspector?

The enforcers of federal law are apparently trying to send a stern message: as a produce farmer, if you send adulterated food to market you may be charged with a crime. You may face jail time if consumers get sick, even in the absence of intention to do wrong or the violation of a clear standard of conduct.

This message, to me, seems detrimental to future cooperative efforts aimed at preventing or reducing the occurrence of deadly food safety incidents, as befell those victims who innocently ate some fresh cantaloupe from a farm in Colorado. And, remembering Justice Potter, it is a message wholly alien to our fundamental principles of law. •