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Criminal Prosecutions Scare Food Industry Executives

For related articles and more information, please visit OCA's Food Safety Research Center page.

The threat of criminal prosecution has the food industry on its toes.

When it comes to massive, deadly foodborne illness outbreaks, implicated companies have always paid a price - in legal and medical costs, if not a loss in business, shattered consumer confidence and even bankruptcy - but, until recently, criminal penalties have been virtually unheard of.

The Obama administration is changing the legal landscape, however, having filed criminal charges against Eric Jensen, 37, and Ryan Jensen, 33, owners of Jensen Farms, in Colorado, the cantaloupe grower and processor linked to the deadliest foodborne illness outbreak in U.S. history. The two brothers, accused of six counts of introducing adulterated food into interstate commerce and aiding and abetting, each face up to six years in jail and a combined $1.5 million fine if found guilty after their farm was found responsible for a 2011 Listeria outbreak that hospitalized 143 people and ultimately was tied to 33 deaths and one miscarriage.

The charges against the Jensens follow a highly publicized 76-count federal indictment issued in February against three Peanut Corp. of America executives for involvement in a 2009 Salmonella outbreak blamed on peanuts processed at their plant. That outbreak was linked to 700 reported illnesses and nine deaths.

"Criminal charges are very, very rare," noted Shawn Stevens, an attorney at Gass Weber Mullins, who has represented some of the largest food manufacturers in the country, including Cargill and Coca-Cola.

Stevens said he's received numerous requests to speak on criminal liability in the food industry over the past year. For the most part, he's been telling companies that they shouldn't expect the government to move toward more prosecutions, but the Jensen Farms case may show otherwise: "FDA is apparently proving me wrong."

Now, Stevens thinks the recent charges could be a sign the Food and Drug Administration, the agency charged with regulating 80 percent of the U.S. food supply, will be aggressive and targeted in its enforcement efforts to get more bang for the agency's very limited resources. He notes that the FDA also is confronting the notion that it must get tougher on food safety following the 2010 passage of the FDA Food Safety Modernization Act, which enhanced some of its enforcement powers.  
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