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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:

How absolutely TERRIFYING!!!  Unfortunately, I have been saying for some time as our company has been trying to offer assistance to the local farmer in addressing food safety expectations that living in a country with 66% of the world’s lawyers there will come a day when they start arresting people for foodborne deaths…..and that day has arrived!!??

What does this mean….the taco truck that sickens people will now be criminally charged?  Restaurants?  Ballparks?  Meatpacking companies?  The Hasbro Executive that authorized a toy with pieces that ends up choking a little child is incarcerated? 

Shouldn’t people be held accountable to their own safety or fears…. if I am 79 years old or on chemo or have a compromised immune system, shouldn’t I only eat foods that have been cooked?  If I am a parent and afraid my child will choke, shouldn’t I only buy toys that don’t have “pieces”?  Where will it end…. and where can I oppose this act of insanity on our food supply?

Many, however, thought it important to speak out on this issue. Some were farmers:

This will be a tragedy if these farmers have to go to jail.

How can anyone hold a farmer criminally responsible for a food safety issue when it is not something within their power to definitively control?

That 33 people died was, indeed, a very terrible thing.  Still, we have the best food safety of anyone in the world.

We as a consumers need to take some responsibility.  We as farmers will have to look to see if we can afford to deliver food to this country. We would never want to knowingly make anyone sick, so we go above the standard of the food safety regulation.

I think if this happens, if these already bankrupt young farmers wind up pleading or being found guilty and, possibly, even going to jail, it will be sad for our food delivery system of the United State of America. This is just my personal opinion not from anyone else, but I have been a farmer for a long time.

— Bill Brim
Lewis Taylor Farms
Tifton, Georgia

Some were marketers:

In most foodborne illness cases, there is never AN INTENT to harm the public. I am sure the Jensens never meant to harm anyone.  I believe many cases of foodborne illness that get blamed on a packer or a producer are oftentimes the fault of the consumers for not properly handling the produce post-harvest in their home, or [it is the fault of improper handling in] a commercial environment.

However, using an old, dirty potato sorter as your cantaloupe sorting line, allowing pooled un-chlorinated dirty water to remain in the sorting area may be considered depraved indifference.  If similar indifference was applied to meat or poultry processing, we all would have a different opinion about indifference.

The tragedy is that the melons were grown more than 90 miles from the famous Rocky Ford growing area, but the FDA and CDC warned the public to “throw out” any cantaloupes from the Rocky Ford region which un-necessarily harmed responsible grower-packer-shippers. Since the incidence, I understand a Rocky Ford growers’ association has been formed to assure all cantaloupes carrying the Rocky Ford designation are processed and cooled using the most modern food processing hygiene procedures possible for cantaloupes.

No question the whole situation is a tragedy, and there is no basis for ‘intent’. However, processing fresh produce “on the cheap” to save the expense of effectively producing a fresh produce item can have negative consequences.  In this case, perhaps ‘pennywise and pound foolish’ should caution the industry against just ‘doing the minimum’.  Our responsibility to the public is greater than that.

—Richard A. Eastes
Marketing Consultant
Grower Relations Adviser
Rixx Intl. Marketing Co. Inc.
Visalia, California

Some were distributors:

Just read your article about Jensen Farms.  You did not state that Jensen Farms had a very favorable 3rd party audit, they supplied all buyers with hold harmless and indemnity agreements.  However, one topic that you should write about is that once Jensen Farms filed for bankruptcy, all claims went back to the retailers and wholesalers that sold the product. 

Why should a wholesaler who only inspects, receives and then re-delivers the product be held accountable for what a grower did or did not do to the product?  This is a serious new wrinkle for our industry.

—Scott Danner
Chief Operating Officer
Liberty Fruit Co., Inc.
Kansas City Kansas

And some food safety experts with special expertise in cantaloupes spoke out on the issue:

I couldn’t agree with you more but, to me, one stunning aspect of this is that I recall a lot of criticism of my statements at the time that adding some antimicrobial, such as chlorine, to the wash line should have been standard practice.

Several auditing pundits and the FDA itself noted that their food safety guidance specifically states single-pass, non-recirculated wash water from a municipal source does not require further antimicrobial treatment… so how is this a criminal misdemeanor to have failed to ‘chlorinate’? or am I misremembering something?  

Trevor Suslow, PhD
Extension Research Specialist
Preharvest to Postharvest Produce Safety
University Of California, Davis
Davis, California

**

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?”

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