Opinion: Listeria Charges Could Set A Dangerous Precedent

Opinion: Listeria Charges Could Set A Dangerous Precedent

Cantaloupes

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Who in the produce and agricultural communities could not regret 2011’s listeria outbreak in cantaloupe and subsequent loss of 33 lives. Yet a dangerous precedent could be set with last week’s arrest and arraignment of growers Eric and Ryan Jensen whose Colorado packinghouse has been linked to the outbreak.

Many Americans supportive of stiff charges against the growers – to which they have pleaded not guilty and have been released on bond – may have visions of Upton Sinclair’s 1906 novel The Jungle and its exposé of unsanitary conditions in Chicago packinghouses. The result of that investigation was creation of the Pure Food and Drug Act and, ultimately, the U.S. Food and Drug Administration (FDA). But the objects of scorn then were the “Big Four” consolidated meatpacking companies on whose watch “contaminated meat products were processed, doctored by chemicals, and mislabeled for sale to the public” – certainly a very high-level “adulteration of food” as the charge against the Jensens reads.

The Jensens’ packing operation was by many accounts negligent in failing to ensure their cantaloupe would be adequately cleaned with anti-bacterial solutions. But as reported by the Wall Street Journal, the Jensens acknowledged through their lawyer that food producers and processors “must be strictly liable for the safety of our food supply.” They said the charges did not suggest that they knew anything about contamination.

And significantly, even a lawyer representing victims of the outbreak called the charges unprecedented in the absence of evidence that the growers knowingly sold contaminated cantaloupe.

Ignorance, as the saying goes, is no excuse for the law. But willful, Jungle-esque intent to cut corners for significant financial gain and to intentionally mislead consumers – to “adulterate food,” as in, “to make impure by adding extraneous, improper, or inferior ingredients” – is a transgression of a higher order than what the Jensens have committed. The distinction is between negligence and willful, even malicious intent.

Food production and processing are risk-filled endeavors that do not occur in easily controllable environments. Produce is harvested and processed quickly while it’s fresh, according to consumer demands. Threats to food safety can and sometimes do arise as a result. In fact, a study by UC-Davis more than 20 years ago found that the more cantaloupe comes into contact with people or “common surfaces,” the more risk it runs of contamination.

If growers are held accountable for every lapse in food safety, we may find fewer and fewer candidates willing to join the occupation. (And the Jensens, ages 37 and 33, regrettably are part of the next generation of farmers.) Draconian liability placed on agricultural producers could lead to increased import of fresh fruits and vegetables from other countries, where production of safe food is often less guaranteed than it is here in the U.S. It could also help to kill the “locally grown” movement among consumers just as it’s beginning.

Will the Jensen brothers be punished? They already have been – with bankruptcy. If found guilty at their trial which begins in December, they could face up to a year in federal prison and a fine of $250,000 for each charge. Rather than placing most of the onus for the safety of produce on the grower, public and regulatory attention needs to swing to practical, real-world implementation of the Food Safety Modernization Act and its stakeholder-shared goal – across the food production, distribution and retailing channel – of preventing contamination rather than responding to it.

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Matt says:

The FSMA is not going to end these types of contamination issues. The problem here was that the packinghouse was selling/giving away bad produce to a confined animal feedlot. They were driving their delivery truck directly from the feedlot, contaminated with listeria in Feces from the animals, right back into the packing shed. The area where the cantaloupes were grown has over 44 high capacity confined animal feedlots with hundreds of thousands of animals. These feedlots are all feeding grain which changes the PH of the stomach of the animals to favor the growth of these deadly pathogens. The brothers themselves should NOT be charged with anything unless they knowingly allowed this to happen on a routine basis, which it seems they did. If this was a careless driver then the brothers should be immune from liability. It is time that we start looking at food production as a whole system. Confined animal feedlots are partly to blame for this outbreak, yet they are given a free pass. Vegetable producers need to be very careful of the nearby production activities of other farmers. Just because YOU are not using manure do not mean that it can not blow in on the wind or wash in with the rain. Going back to growing our own nitrogen with green manure crops, proper packing house sanitation, use of clean water from uncontaminated sources, proper worker education and strict oversight from management are all necessary for a safe food supply. On another not, the death toll would have been MUCH smaller if there were more local producers and people bought locally. The risk of contaminated produce spreading over vast areas is eliminated when people buy locally from local producers. If anything the FSMA will drive more small, local producers OUT of business or force those young people looking at it to choose a different career path. One without all of the government red tape and cost.

ellen says:

I’m a little confused. Is the author of this article suggesting that the only punishable offence is if a grower adulterates his produce with contaminates? That willfully ignoring the fact that a wash would have eliminated a deadly bacteria that naturally occures is blameless and should go unpunished? If we suscribe to that, then my downer cow that may have deadly prions should be allowed into the food chain because I can push it with a front loader into the processing plant. I did not add the prions to the cow and so have no responsibility to prevent them from entering the food chain.

Jim Sulecki says:

Ellen, you make a good rhetorical point. After willful intent has been eliminated as a cause, there is a fine line between negligence and ignorance. The distinction can be difficult to prove.

It’s interesting that you make a connection to the processing of animals, seeing as the comment above yours notes the possible link of listeria in vegetables to feces in animal feedlots. This demonstrates the connectedness across food production and the need for everyone to commonly share responsibility at every step in the chain rather than singling out the few for undue punishment.