Brothers Eric and Ryan Jensen, owners of Jensen Farms, probably do not have to worry about criminal charges for the Listeria outbreak caused by the “Rocky Ford” cantaloupes they were selling before Sept. 10.

Charles Miller, speaking for the U.S. Department of Justice, told the Pueblo Chieftain newspaper that no federal criminal investigation is underway.   

His comments to the largest newspaper circulating in Colorado’s cantaloupe growing area came less than 24 hours after there was a hint that federal prosecution was still an option.

In an Oct. 18 warning letter to Jensen Farms, the U.S. Food and Drug Administration (FDA) included this paragraph:

“FDA may take further action if you do not promptly correct these violations. For instance, we may take further action to seize your product(s) and/or enjoin your firm from operating.  Additionally, the receipt of this warning letter and any action taken to correct violations cited in it do not preclude a subsequent criminal prosecution by the United States Department of Justice.”

While FDA routinely threatens to enjoin and/or seize products, the threat of criminal prosecution is rare even where deaths are involved. In the 2008-09 Salmonella Saintpaul outbreak from peanut butter products produced by the Peanut Corporation of America, nine people died and there has yet to be any criminal prosecution.

In that outbreak, caused by peanut butter and paste, FDA’s Office of Criminal Investigation (OCI) brought in the Federal Bureau of Investigation (FBI) and executed search warrants on PCA properties. 

Although there are 25 deaths in the current Listeria outbreak, with close to another 100 victims mostly under hospital treatment, there has been no sign that either OIC or the FBI are involved as is consistent with the Justice Department spokesman.

The nearly 20-year old OCI’s most recent food-related case was getting an indictment of a Rhode Island man for selling cane sugar that was labeled as maple syrup. It also executed search warrants at a rodent-infested warehouse to allow U.S. Marshals to seize the inventory.

State and local district attorneys in communities where the listeriosis deaths occurred are also unlikely to bring criminal actions.