October, 2013

Fruits of Thought

A Call To Arms

The produce industry is blessed with a cornucopia of national and regional organizations, many of which play an important role in advocating the trade’s positions before government. Key issues these trade groups currently wrestle with include things such as the Farm Bill, immigration reform, food safety regulation and much more.

These issues are all important, of course, but they pale in comparison to a new issue that has arisen, and the apparatus of the industry’s government relations efforts must pivot quickly to address an urgent threat: that well intentioned produce industry executives in all parts of the supply chain may be charged with a crime and sent to jail despite ever intending to cause any harm.

The recent arrest of Eric and Ryan Jensen of Jensen Farms challenges every trade association in our industry. These groups want nothing to do with defending people whose produce operation wound up killing many people. The organizations don’t want to be associated with these people, preferring to have them perceived as “bad apples” and totally distinct from the vast majority of the trade that is cautious to always produce high quality, safe food.

Yet it cannot be emphasized enough that Eric and Ryan Jensen were not arrested for violating any food safety laws. They are not charged with inadequate use of chlorine, or failing to pre-cool cantaloupes, or with illegally purchasing used equipment. The Jensen brothers are charged with “introducing adulterated foods into interstate commerce.” That is it. They are not charged with being negligent; they are not alleged to have intended to harm anyone — it is a totally different kind of prosecution than has ever been seen before in our industry.

It is saying that no matter how many audits one has, no matter what the standard of care one followed, no matter how noble were one’s intensions — if anything goes wrong, you are not merely responsible, in the sense that one can be sued civilly, but you are criminally liable and can go to jail.

On an elemental level of justice, this is abhorrent. Criminal culpability, as distinct from civil liability, has traditionally required a finding of intent. The Latin phrase mens rea, or guilty mind, has long been the prerequisite for a criminal charge. Now, however, we are faced with the idea that well meaning farmers who try to do the right thing can be arrested and jailed for “introducing an adulterant into interstate commerce.” This means that if a bird did its business on the produce and the produce was innocently shipped to a consumer, someone could go to jail. Note that the mere existence of an adulterant is a crime; nobody has to get sick or die.

Beyond justice, this type of charge strikes at the heart of the produce industry. It is in the nature of produce — grown under the influence of winds, rain and soil — that there will be adulterants in the food supply from time to time. There is scarcely an executive in the industry who at one time or another could not be charged with a crime under this standard. Which raises the obvious question: Who is going to be willing to put their very freedom on the line just to produce fresh produce? This law must be reversed.

Some might be tempted to say that the Jensens were uniquely bad people, and that we can rely on prosecutorial discretion to protect the industry. However, when you really read the complaint against the Jensen brothers, one realizes that they are being charged because it is a high profile case, not for any unique sins. Specifically it is mentioned that: 1) The farm bought used equipment originally intended for potatoes — as if farmers making used equipment work has not gone on since the beginning of agriculture and has not always been widely praised as a tool in keeping food costs down; 2) that they never used the chlorine sprayer that they could have.

Before the farm had this equipment, it had a giant dunk tank that it filled with chlorinated water. This new equipment included a fresh water sprayer. With a fresh water sprayer, there is no need for chlorine because the FDA has never approved chlorine to remove pathogens from food. Chlorine’s purpose is to remove pathogens from water, as in a dunk tank. Since the new system always sprayed clean water, there was no need to use chlorine.

If the FDA wants to make rules or see laws passed that have clear and explicit requirements — say that all cantaloupes must be washed in chlorine or all cantaloupes must be pre-cooled — we have no problem with that, and if someone intentionally or negligently fails to follow the law, fine, throw the book at them.

But there are no laws broken here. Nobody is charged with intent or negligence. This idea that an accidental entry of an adulterant into the food supply is a crime is like a Sword of Damocles hanging over the head of everyone working in this trade. If changing the law is not made, the very top priority of the trade’s government relations apparatus, talent and investment will slip away from the industry. If we do not act, and are not successful, our best people will find new opportunities and our future will be constrained.                                      pb