Courtesy University of California-DavisRegardless of the outcome of the criminal case against Eric and Ryan Jensen, the first instance of criminal charges against growers in a foodborne illness outbreak has the fresh produce industry buzzing with concerns about a range of issues.
Some have said the charges are a signal that the Food and Drug Administration and federal government in general plans to be more aggressive in placing blame and seeking criminal punishment in food-related outbreaks. Others wonder whether they will continue to have access to insurance for their growing and shipping operations.
“I was talking to a group of microbiologists at an event (recently) put on by Earthbound Farm and one guy asked me if I thought the Jensen charges were an opening salvo,” said Seattle attorney Bill Marler. “I told him I seriously doubt it.”
Marler said he thought the misdemeanor criminal charges against the Colorado cantaloupe growers are more about the number of deaths linked to the outbreak — at least 33 according to the Centers for Disease Control and Prevention — than the FDA adopting a new approach.
Officials with the FDA have not been able to provide comment since the beginning of October because of staff furloughs related to the government shutdown.
Growers fear they will be next
A lawyer on the other side of the coin, Brad Sullivan, of the Hollister, Calif., office of the firm L+G LLP, agreed that the government’s decision to file criminal charges in the Jensen case is probably not a sign of a more aggressive FDA.
However, Sullivan said the industry should take the charges seriously. Sullivan represents growers and has handled defenses in civil cases related to recalls. His clients range from a backyard grower of specialty greens to large produce companies with international reach.
“The growers are all thinking ‘that could have been me’ and they are right,” Sullivan said. “And there is the perception that Wal-Mart and others should be in that case.”
Sullivan said one reason he believes retailers should be included is that the Jensens would not have been using a wash system for their cantaloupe except that it was required by customers, such as Wal-Mart, who have started mandating food safety measures.
“Everyone knows that the dart of randomness could land in their field next,” Sullivan said of the potential for outbreaks and litigation.