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Jensen Brothers Take Responsibility But Blame PrimusLabs

After first pleading not guilty last month to all charges, Eric and Ryan Jensen reached an agreement with federal prosecutors that tomorrow will see them plead guilty and agree to cooperate with the government in exchange for lighter sentences.

The brothers will probably get an opportunity to provide testimony when they enter their pleas on federal misdemeanor charges where strict liability is the standard. Here’s how that works: the cantaloupes they grew in 2011 were food, it was adulterated, and it entered into interstate commerce when the brothers were responsible for the business that allowed it to happen.

When strict liability applies, nothing else is required. So, guilty and guilty, they will say tomorrow in the U.S. District Court in Denver.

But, once that’s done, the Jensen brothers seem prepared to say a lot. They will be ready with words of caution for the food industry, in which they say relying on the advice of outside “experts” can land business owners in jail.

The brothers, who tomorrow will accept responsibly for the nation’s most deadly outbreak of foodborne illness in a generation, are prepared to say that blame clearly rests with the third-party auditor they relied upon to keep their cantaloupes safe for human consumption.

They’ve sued PrimusLabs, the Santa Maria, CA-based food-safety consultant that provides “internationally recognized audits” for food producers such as Jensen Farms. Third-party auditors such as PrimusLabs have often come in for criticism from food-safety advocates after major outbreaks of foodborne illness for issuing reports that, in hindsight, appear way too rosy.

The brothers’ Jensen Farms partnership sued Primus Labs on Oct. 15 in Prowers County District Court at Lamar, CO. The Jensens claim that PrimusLabs was negligent in auditing their cantaloupe fields and packing facility in July 2011, shortly before their cantaloupe was linked to a 28-state outbreak of Listeria that was ultimately found responsible for 33 deaths and a miscarriage. It also sickened about 150 people.

They want their civil case heard by a jury in Prowers County where Jensen Farms is located.

In their state complaint, the Jensen brothers say their Texas-based distributor, Frontera Produce Inc., “required” them to become “Primus Certified.” Presumably, Frontera imposed the requirement to make it easier to distribute the Colorado-grown cantaloupe to national retailers.

Jensen Farms did contract with PrimusLabs for an audit of both its farmlands, where its cantaloupes were grown, and its packing house. PrimusLabs then hired a subcontractor, Bio Food Safety, as its agent to conduct the actual audit. The year earlier, Bio Food Safety directly conducted the outside audit for Jensen Farms.

James Dilorio of Texas was the auditor Bio Food Safety assigned to the job in 2011 after it signed on as a Primus subcontractor.  The Jensen brothers charge that PrimusLabs “knew, or should have known, that BFS was an improper entity for that work, work which involved the risk of harm to others.”

After conducting the July 25, 2011, audit, Dilorio “acting on behalf of Primus, gave Jensen a score of 96 percent and a ‘superior’ rating at the conclusion of the audit,” states the Jensens’ lawsuit.

Continuing in the complaint, the Jensen brothers allege that, in 2010, an audit conducted of their cantaloupe ranch by “the president of BFS” expressed concern about the hydrocooler they were using for processing. They say the 2010 audit found the hydrocooler was a “hotspot” for contamination because of its use of recirculating water.

Before the 2011 growing season, Jensen Farms changed out its old hydrocooler for new processing equipment that used city water and brushes to wash the cantaloupes. “The only chlorination was in the city water used to wash the cantaloupe,” they say.

“Since the 2011 auditor was not the 2010 auditor,” states their lawsuit, “Eric Jensen specifically described the change in the system from the prior audit, including the removal of the hydrocooler with its recirculating chlorinated water. The 2011 auditor noted the changes in his report.”

They say the PrimusLabs subcontractor did not question what they’d done, did not warn them of any risk of contamination, and did not discuss U.S. Food and Drug Administration (FDA) guidelines with them.

“The 2011 auditor, Mr. Dilorio, failed to observe, or properly downscore or consider, multiple conditions or practices that were in violation of Primus’s own audit standards applicable to cantaloupe packing houses, industry standards, and relevant FDA industry guidance,” they charge.

As a result, the Jensens claim that they were improperly given a “superior” rating, and the auditor “erroneously represented” to them and others that they met “Primus Certified” standards. The Jensen brothers say that, had they failed the audit and not been “Primus Certified,” they would not have sold and distributed their cantaloupes in interstate commerce through Frontera.

They say they still had no evidence that their melons were contaminated when they agreed to a voluntary recall on Sept. 14, 2011 – about 10 days after the public learned about the dangerous outbreak.

In an Oct. 18, 2011, warning letter, Jensen Farms learned the Listeria was being spread by its cantaloupes, and that the event was caused by the design of its conveyer system and the changed-out hydrocooler. They say both conditions were observed by the audit, but they were still “passed as safe.” Further, they point out that James R. Gorny, FDA’s senior advisor for produce, found the audit “seriously deficient in its inspection and findings.”

Their civil lawsuit charges PrimusLabs, which has not yet commented on or responded to the filing, with negligence, breach of contract and unfair and deceptive trade practices.

Each of the brothers is charged with six federal misdemeanor charges for introducing adulterated food into interstate commerce and criminal aiding and abetting.

If they contested those charges in a jury trial and were found guilty, they faced a potential six years in federal prison and fines totaling up to $1.5 million. By pleading guilty, much-reduced sentences are expected.

© Food Safety News
  • Russell La Claire

    Primus Labs is to blame, but we will take responsibility. How very noble, gentlemen.

  • http://burningbird.net Shelley Powers

    It’s already known what happened: the contamination happened at the plant.

    Ultimately in the end, the owner of the plant is the one most responsible for contamination happening at the plant. They have a responsibility to ensure best practices. They can’t depend on third-party entities to ensure they’re doing the right thing.

    That’s why the government charged the Jenson brothers, and no one else.

  • Gordon

    What a crock! Jensen farms made the change to the process, Jensen farms clearly didn’t do a correct risk assessment and Jensen Farms killed people with their lack of effective controls. Man up.

    • Donder33

      The problem is that Jensen Brothers were just the Jensen brothers, and really had no real
      understanding of the concepts of Risk Assessment.
      They thought of themselves as just farmers and did not think they needed education in being anything else. They also thought erroneously that the auditors were the experts in the new farm-to-fork set of food safety protocols.
      Good-ol-boy farmers have no place in the new science based FISMA system if they are not willing to learn the new way of doing things, or hire the right food safety people to be on staff.

  • FS Illuminati

    What do you expect when your using a lab/company that creates their own certification scheme then has the auditors/sales people there to certify you for their own certification, then recommending/selling you to do micro/pesticide residue testing with them as well…

    Customers think its great to have a one stop shop but come on lets face the facts here… how can you realistically expect a company trying to do everything under the sun to be an expert at anything…

    Word on the street is their lab is so dirty that they wont even let their own customers come visit… hard to believe any of their samples come back no detect/clean when your lab could double for a pathogen bed and breakfast…

    Not to mention it is a DIRECT conflict of interest… How can you have a company doing cert schemes, audits for their own cert, and conducting the analysis required for their certification????….

    THIS SHOULD NOT BE LEGAL.. and Primus knows this which is why they unsuccessfully tried to establish Azzule for their auditors

  • cb

    Food is out to kill you if you don’t treat it properly, this very simple fact implies having a certain amount of expertize if one is to do business with food.

    As I see it, the court system (the institution that is to protects ones right to ones own life) are successfully slapping a government coddled US food industry into shape (Jensen Farms). Now the sloppy 3rd party CBs are getting in line as well with threats of the civil courts (Primus Labs).

    This threatens the Certification Schemes owners like GMA Safe, AIB, BRC, WQA, SQF, etc (remember, Sunlands Inc. peanut recall was from an SQF certified plant) as to the question of their audits “assuring” safety. I suspect the Accreditation and Benchmarking Bodies will be affected to.

    Weather you like the big retailers or not, they are the main drivers of now rigidly demanding food safety certification schemes (discovering some are better than others) to protect themselves from their customers legitimately blaming the retailers on the front line of the farm-to-fork food supply chain.

  • SLaureda

    Does anybody not understand that Listeria is a slow-growing organism that likes cool.damp conditions within a certain temperature range. It probably lives in your refrigerator as well as mine. Salmonella , on the other hand can survive a huge temperature range.

  • GrowUrOwnFood

    Maybe the Jensen brothers screwed up, or maybe they just had inadeqaute info about their new handling system. But here’s a thought….how about if people assume some responsibility for the food they choose to eat? Food is not devoid of microbes. ASSUME the food has some risk and act accordingly to minimize that risk to yourself. You know that melons, cukes, peppers, etc. are grown outdoors in contact with soil. Soil harbors all sorts of pathogens and other microbes. When the produce enters the supply chain, it also comes into contact with untold numbers of hands (harvesters, transport company, grocery store staff, and the general public groping their way through the produce), most of which are not clean. Who among us hasn’t seen a toddler reach from the shopping cart, snag an apple and drool all over it, only to have mommy snatch it away and place it back on the shelf? You don’t know what might be on the surface of your produce….germs are not always accompanied by visible soil.
    A simple solution to reduce risk would be for the consumer to wash the surface of firm produce items with soap and running water, and even to use a chlorine sanitizer, especially if the food item is commercially produced. Washing just with fresh water can reduce microbial load by 2 log; using detergents to break up organic material, followed by a rinse and sanitizer can drop microbial load much more. Wash cantalopes and melons thoroughly with soap and water, rinse, and mist with a
    50-100ppm chlorine sanitizing solution. Allow 5 minutes contact time to kill germs, then rinse and cut up. Otherwise, as you cut into the melon, you are pushing surface contamination from the rind deep into the edible portions of the flesh.
    It seems that everywone wants to grab the produce from the store shelf and start eating right away. It is an unreasonable attitude, and causes an untenable approach to food safety. Pushing responsibilty off on the grower is foolish and destructive to the food supply. Better yet, either produce your own food, or obtain it from local sources whose handling methods meet your approval.

    And for goodness sakes, if you know that you have vulnerabilities that make you more prone to foodborne illness (liver failure, on chemo, immunocompromised) increase your vigilance and caution when selecting foods. Your risk is greater, so consuming raw and lightly cooked foods should be avoided. Carefully wash produce before consumption, using plenty of running water. Avoid raw fruits that are soft (grapes, berries), as they more readily hold contaminants and are difficult to thoroughly clean.
    If you choose to eat prepared food (restaurant, deli-packs of cut fruit) keep in mind that you are now trusting someone else to reduce food risks for you. You are assuming that the minimum wage deli clerk knows to wash their hands, use clean packing materials, and to properly clean the fruit before cutting and packing your food. You are assuming the restaurant bothered to train its kitchen help not to leave raw chicken dripping into the coleslaw, or eat out of the mac & cheese tray being set in the hot case. Big assumption…

    • Gordon

      you don’t actually expect people to take responsibility for themselves do you? Not when they are encouraged to sue and they themselves are clearly never to blame!