Good Fruit Grower

December 2013

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GOOD POINT Chris Schlect, Northwest Horticultural Council A troubling case The enforcers of federal law are apparently trying to send a stern message: as a produce farmer, if you send adulterated food to market, you may be charged with a crime. antaloupes were raised and sold to outlets in several states by a family farm in Colorado; thirty-three people died who ate these fresh melons, and many more were hospitalized. The agent of this death and disease was identified as a bacterium, Listeria monocytogenes. Authorities say that the farm used ill-suited packing equipment and the cantaloupes were not subject to a sufficient cleaning system. And a chlorine spray was not used. However, the firm had successfully passed a private food-safety audit some weeks before the illfated shipments of cantaloupes. This food safety incident occurred in 2011. The melon farm was then owned and operated by brothers Eric and Ryan Jensen, but is now out of business. What should be done? In the past, for such a food safety case, our civil litigation system would have been the primary way to determine responsibility and assess money damages. An injured plaintiff would file suit, prove harm and causation in court, and recover against a legally responsible defendant. And, of course, an official regulatory agency with jurisdiction, such as the U.S. Food and Drug Administration or a state health department, would also conduct an investigation, ascertain the facts, and impose civil penalties that might be available and appropriate. So, the family farm in Colorado is gone, its reputation ruined, and its owners broke. What now? The federal government chose on September 26, 2013, to file six criminal misdemeanor charges against the two brothers. They faced up to one year in jail and a fine of $250,000 per charge. To avoid going to trial, the Jensen brothers negotiated with federal prosecutors and in October pled guilty to the charges. (Plea deals are often struck by criminal defendants, especially those from the business community, to lessen ultimate penalties, avoid additional negative publicity, and halt the gusher of funds spent on defense attorneys.) To my knowledge, this is the first time the federal government has used the criminal law to go after a family farm in such a food safety situation. This is not a case of intent to poison people or one of purposefully using dangerous ingredients. This is not a violation of a commodity-specific food-safety standard, one previously set by government. This is not a case of observable defects, since the bacteria in question are too small for the human eye to see. PHOTO BY ASSOCIATED PRESS How can the criminal law be used when there appears to be no intent to do harm? Melon farmers Eric and Ryan Jensen pled guilty to criminal charges. Pear Trees on ® 7 97 OHxF 8 & Rootstocks * OHxF® 87 & 97* – Match your specific variety and orchard to one of these rootstocks for maximum results. *OHxF® 69 Rootstock Shown Patent Information Available Call today for more detailed information (800) 675-6075 34 DECEMBER 2013 GOOD FRUIT GROWER No intent to do harm How can the criminal law be used when there appears to be no intent to do harm? To understand the current situation, it is useful to read the U.S. Supreme Court case of United States v. Park (421 U.S. 658) decided in 1975. In that leading case, a large national food chain was found criminally guilty of violating the Food, Drug, and Cosmetic Act by shipping adulterated food into interstate commerce. It seems that rats were frequently found in its food warehouses. The president of the firm, who said he didn't know about the rats, ultimately was fined $50 for each misdemeanor charge. Here are comments by Chief Justice Warren Burger in the court ruling:

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