Good Fruit Grower

December 2013

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Page 34 of 95

1) "Cases under the Federal Food and Drugs Act of 1906 reflected the view that knowledge and intent were not required to be proved in prosecutions under its criminal provisions…." 2) "… the public interest in the purity of its food is so great as to warrant the imposition of the highest standards of care on distributors." 3) "The Act does not … make criminal liability turn on 'awareness of some wrongdoing'… or 'conscious fraud.' The duty imposed by Congress on responsible corporate agents is, we emphasize, one that requires the highest standard of foresight and vigilance, but the Act, in its criminal aspect, does not require that which is objectively impossible." I prefer a quote taken from the dissenting opinion written by Justice Potter Stewart: "We deal here with a criminal conviction, not a civil forfeiture. It is true that the crime was but a misdemeanor and the penalty in this case light. But under the statute even a first conviction can result in imprisonment for a year, and a subsequent offense a felony carrying a punishment of up to three years in prison. So the standardless conviction approved today can serve in another case to support a felony conviction and a substantial prison sentence. However highly the Court may regard the social objectives of the Food, Drug, and Cosmetic Act, that regard cannot serve to justify a criminal conviction so wholly alien to fundamental principles of our law." Troubling This use of the criminal law in the Colorado cantaloupe case is troubling. Absent egregious circumstances, do we really want to have every fruit and vegetable grower and packer exposed to a jail term if a customer later becomes ill due to unseen bacteria or other such human pathogen? In the fresh produce industry, there is no kill step for human pathogens. Even with the best systems in place, there will be the rare cases of illness—and even death—when fresh produce is consumed. While some products, such as tree fruits, are safer than others, there are no risk-free absolutes. It does not take much foresight to see there will be much less cooperation by fruit and vegetable farmers and packers with public health authorities when a food safety outbreak does occur if a jail sentence might be in the cards. Even in the absence of an outbreak, will farmers continue to willingly share pathogen-testing data? Will they continue to welcome university food safety researchers on their grounds? In the future, will they drop everything to cooperate with a federal food inspector? 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. You may face jail time if consumers get sick, even in the absence of intention to do wrong or the violation of a clear standard of conduct. This message, to me, seems detrimental to future cooperative efforts aimed at preventing or reducing the occurrence of deadly food safety incidents, as befell those victims who innocently ate some fresh cantaloupe from a farm in Colorado. And, remembering Justice Potter, it is a message wholly alien to our fundamental principles of law. • We're with you from the ground up For more than a century, KeyBank has delivered a unique combination of agribusiness knowledge, experience, and flexible service. We have solutions to help our clients, whether you're a grower, processor, packager, or distributor. Our tailored solutions spring from our understanding of the cycles of farming, seasonal dynamics, and the unique risks associated with the industry.. KeyBank is one of the nation's leading agribusiness lenders. We specialize in: These services can help protect you from the inevitable Contact us today. We want to help your business grow and thrive. To learn more, call Mike McKay, Northwest, at 800-346-8828 or Scott Rueff, Great Lakes/East, at 574-295-2910, or visit * Securities products and services such as investment banking and capital raising are offered by KeyBanc Capital Markets Inc., Member NYSE/FINRA/SPIC. Banking products are offered by KeyBank National Association. All credit products are subject to credit approval. is a registered service mark of KeyCorp. ©2013 KeyCorp. KeyBank is Member FDIC. KeyBank is an Equal Housing lender. ADL6291 GOOD FRUIT GROWER DECEMBER 2013 35

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