Industry Representatives From All Sectors Weigh In On Criminal Prosecution In The Jensen Farms Case, But Trade Associations Remain Silent
Jim Prevor’s Perishable Pundit, October 28, 2013
Our piece, It Surely Is A Tragedy, BUT Should Not Be A Crime: Arrest Of Jensen Farms' Owners Betrays Elemental Principles Of Justice And Sets Stage For Less Investment In Production Of Food, brought many responses.
One large buyer thought it best to remain confidential:
Many, however, thought it important to speak out on this issue. Some were farmers:
Some were marketers:
Some were distributors:
And some food safety experts with special expertise in cantaloupes spoke out on the issue:
Our anonymous buyer makes a case for caveat emptor — the old Latin standard of “Let the buyer beware.” There is substantial reason to believe that such a system would, in fact, result in less foodborne illness as consumers, cognizant of the risks and that they alone are responsible for their health and safety, would, in fact, behave differently. Where they would shop and eat would be transformed, and a whole roster of industries would arise to provide certifications meaningful to consumers.
The problem, of course, is that this is not the legal standard that exists and, frankly, it is not the standard that any produce industry organization is pushing. In fact it is just the opposite -- the produce industry organizations like the idea that people have faith in government as the protector of the safety of the food supply as they believe this encourages higher sales.
Bill Brim of Lewis Taylor Farms points out the obvious. If the standard is that farmers, packers and shippers, whose food safety standards are good enough to be acceptable to a company such as Frontera, which marketed the produce, a company such as Wal-Mart, which purchased the produce, and to a highly reputable auditor such as Primus… if the people who meet these types of standards can be hauled off to court as criminals because there was a food safety problem, then who could possibly be safe?
If the standard really is that the introduction of an adulterant into the food supply is ipso facto a criminal act, who is going to be willing to grow cantaloupes in the dirt? Under the open sky? Where they can be buffeted by winds or reached by animals?
And if farmers have to abandon open-field farming for 100% controlled environment agriculture, who is going to pay for this? And isn’t it likely that whatever we gain in food safety is likely to be outweighed by the ill-health effects as people switch their diet to less healthy foods to avoid such expensive produce?
Rick Eastes is always thoughtful, but we think he is conflating two issues here. From time immemorial, the yeoman farmer made due with less than optimal options. Reworking equipment, finding innovative ways to move things between crops and facilities… this is all part of farming. Indeed American ingenuity at doing precisely this has long been recognized as a substantial advantage.
Still, if the Jensen brothers had been charged with negligence, or as Rick put it “depraved indifference,” because they used this piece of equipment or kept it in a sub-standard state of maintenance, that would be one thing. If that were the case, and if the government wanted to charge the brothers with doing something wrong, well that would be understandable.
In this case, however, the charges are NOT that the Jensens did anything wrong — those allegations are just atmospherics. The charge is that the Jensen Brothers introduced an adulterant into interstate commerce. No defense would acquit them, no evidence of diligence would mean anything at all — which is probably why, combined with being broke, the brothers decided to plead guilty.
This is the issue — and it is one that our associations seem to be strangely silent on.
Rick’s second point, that the industry should be wary of doing things “on the cheap,” is unarguable. Although even there, it seems to us that the direction of those complaints needs to go to those who buy the produce. Wal-Mart received a copy of the audit. Its response was not to call up Jensen Farms and say: “Listen guys, we see you have been buying some used equipment and jerry-rigging it to work on cantaloupes. We really want you to buy all new stainless steel equipment purpose-manufactured for processing cantaloupes. If you need some extra money to make this work, let us know and we will adjust the cantaloupe price up a bit.”
But this is some alternative universe. Jensen Farms was under pressure to save every dime.
In fact, Wal-Mart was supposed to be demanding a Global Food Safety Initiative audit. It waived that requirement, perhaps to push “local” or to get product cheaper.
Wal-Mart is free to demand whatever requirements it wants of its vendors. If Wal-Mart told Primus it wants a special Wal-Mart audit that would certify, among other things, that all equipment was purchased new, not used, that is what Primus would produce. But such a requirement didn’t exist at the time and doesn’t exist now. Packers on this scale who would try to do something like this would soon find themselves with an inflated cost structure and go out of business.
Scott Danner points to what is not so much a “new wrinkle” as a new experience. In general, in the United States, the “producer” of a product has primary food safety liability. This means that as long as the producer has enough money or insurance, nobody else in the supply chain will have to pay. However, as the law stands, EVERYONE in the supply chain is contingently liable. So if Jensen can’t pay the judgments, Frontera may have to or Wal-Mart or wholesalers, distributors, truckers, etc.
Because of the large number of deaths in this situation, Jensen Farms exhausted its resources quickly, and now it is a battle as to who should pay. From a public policy perspective, the question is what, really, do we expect of different people in the supply chain? We suspect that most people would say it is reasonable to expect a specifying buyer to exercise due diligence in those from whom it buys, and a marketing agent might be expected to check out those it represents. But a trucker? A distributor that doesn’t select the vendor but just handles what a restaurant chain tells it to? It seems like this legal standard needs to be rethought.
Dr. Suslow has a good memory. The idea that not chlorinating this water was some kind of a crime is bizarre. The facts: Chlorine is NOT APPROVED to disinfect food! Chlorine is approved to clean the water. So, when Jensen Farms used to have a dunk tank, it needed, and used, chlorine to keep that water clean.
When it shifted to a different system in which water was “single pass,” meaning it didn’t recirculate, there obviously was no need to clean the water. It was tap water.
Now, one could argue that it might have provided some extra margin of safety to add chlorine here and perhaps that would be true, but there are hundreds of things that could be done which would add an extra margin of safety – put buffer zones around plants, make employees shower before entering a facility, have a nurse check the health of everyone each day before they are allowed into the plant, etc., etc. — and we don’t put people in jail for failing to do those things.
In fact, lots of cantaloupes are shipped without being washed at all, and some research indicates that is the best way.
Right now the only protection produce growers, packers, shippers and processors have is prosecutorial discretion — meaning prosecutors are not obligated to charge every crime that they see happening. This is, however, a thin reed to lean on. If the associations do not make this a top priority, keep your eyes peeled to your TV, because one day — mark this Pundit’s words — some ambitious prosecutor will have TV cameras waiting as some produce industry luminary — maybe one who happens to be chairman of one of the associations — is marched off to a police car in handcuffs.
There seems to be this terrible disinclination to have the produce industry defend the Jensens in any way. This is not, however, about defending the Jensens. This is about respecting oneself and defending one’s profession. As Hillel the Elder wrote, “If I am not for myself, who will be for me?”