The Consequences of Killer Cantaloupes

If you follow food safety, you may have heard last week that brothers Eric and Ryan Jensen pled not guilty in federal court to charges of introducing adulterated food into interstate commerce.

As a new UCS Center for Science and Democracy case study discusses, the brothers previously made headlines two years ago when cantaloupes contaminated with Listeria bacteria were traced to their farm in Colorado. Those cantaloupes caused one of the deadliest foodborne illness outbreaks in United States history, sickening 147 people and killing 33.

Although the brothers have already faced numerous civil lawsuits from victims and their families and had to file for bankruptcy in 2012, these are their first criminal charges. If convicted, they could be sentenced to up to six years prison time and over $1 million in fines.

We Need a Proactive Response

One thing that has bothered me since I began researching this case of the killer cantaloupes is that the public conversation has largely scapegoated the Jensen brothers rather than looking at the bigger picture of food safety oversight. It’s fair enough that the media has vilified them – I have little sympathy – but we need preventative rather than reactive regulatory action if we are going to stop future outbreaks before rather than after people get sick.

When the Jensen Farms outbreak first began, the FDA reacted by sending inspectors to Jensen Farms. Unbelievably, for a business that had been in the Jensen family for several generations, this was the first time FDA inspectors had ever visited the operation. Once there, inspectors quickly found the cause of the Listeria contamination: inappropriate equipment, dirty facilities, and poor post-harvest handling practices. If this inspection could have happened sooner, lives would have been saved.

New FDA Food Safety Rules Plagued By Old Conflict of Interest

When President Obama signed into law the Food Safety Modernization Act (FSMA) in January 2011, he had bipartisan support, as well as the backing of both the food industry and food safety advocates. The new law was the first major overhaul of food safety in 70 years, and with multistate foodborne illness outbreaks an increasing problem, everyone agreed on the need for reform.

In theory, new FDA rules proposed in 2013 to implement the FSMA will prevent outbreaks like the one originating at Jensen Farms before they start. The proposed Produce Rule, for example, establishes standards for minimizing microbial contamination of produce through better management of water, soil, animals, worker health and hygiene, and facilities and tools, including requiring that “all agricultural water be safe and of adequate sanitary quality for its intended use.” At Jensen Farms, FDA inspectors found, among other things, that water that came into contact with the cantaloupes was not of adequate sanitary quality.

However, good rules only go so far when an agency lacks the resources to enforce them. Jensen Farms had received a good score from third-party auditors just days before the start of the outbreak. The auditors had noted problems but not deducted points. Why? Private, third-party auditors are paid by growers and packers like Jensen Farms, creating an inherent conflict of interest. Distributors and retailers require the growers to have good audit scores in order to do business with them. In the words of food safety attorney Bill Marler who has represented victims of Jensen Farms, “A private auditor is not going to list a farm’s flaws, tell it to shut down, then say, ‘I finished my audit — can I have my $2,000?’ ”

Although FDA inspectors will play a greater role in enforcing the new food safety rules, the agency states in the text of the proposed rule, “We anticipate that compliance will be achieved primarily through the conscientious efforts of farmers, complemented by the efforts of State and local governments, extension services, private audits and certifications, and other private sector supply chain management efforts.” The Jensen Farms case illustrates how well that strategy has worked.

Food Safety and the Impending Government Shutdown

Only the worst foodborne illness outbreaks make the evening news, but it is important to recognize that the Jensen Farms case is not an isolated incident but part of a pattern. During 2011, the year of the Jensen Farms outbreak, there were 15 other multistate foodborne illness outbreaks in the United States. Over 1100 people got sick, and a total of 36 people died. Listeriosis is a particularly nasty infection to get and has a high fatality rate – no doubt the reason this outbreak garnered so much public horror. Relative to more familiar foodborne pathogens like Salmonella and E. coli, Listeria is also relatively uncommon.

However, the Jensen Farms case is notable not only because it killed so many people but because it could easily happen again. FDA inspectors failed to catch the Jensen Farms’ killer cantaloupes before they made people sick not because they lacked the scientific know-how but because the FDA’s capacity for produce inspections is woefully overextended. The new food safety rules don’t address a shortage of staff that is the direct result of a shortage of funding.

As Congress lurches towards a government shutdown, it’s worth thinking about what happens when we defund public services that protect our health and safety.  According to a Department of Health and Human Services contingency staffing plan, if the shutdown actually happens, the FDA will suffer further cuts: “FDA will be unable to support the majority of its food safety, nutrition, and cosmetics activities. FDA will also have to cease safety activities such as routine establishment inspections, some compliance and enforcement activities, monitoring of imports, notification programs (e.g., food contact substances, infant formula), and the majority of the laboratory research necessary to inform public health decision-making.”

So far in 2013 in the U.S., over 1500 people have fallen ill and 2 have died in the course of 10 multistate foodborne illness outbreaks. Many different foods have become contaminated: chicken, ground beef, cheese, sesame paste, cucumbers. The CDC provides data for the current year and past years on these outbreaks, and if you look at those numbers as you’re counting down to the looming shutdown … well, you may look at your dinner in a different way – like maybe under a microscope.