Setting aside the fact that, after tomorrow’s election, the United States may well have a non-functioning democracy and that both its civil and criminal justice system may collapse under the weight of political violence.  On that happy note, in the past, our civil justice system has held food producers to account. And at times – in rare circumstances – criminal sanctions have been levied in certain food poisoning events.

Tomorrow, I will arise at 3:00 AM to do a Zoom speech in South Africa. I would have flown there, but the United States’ response to COVID-19 has been so pathetic that we are all banned from international travel – a minor inconvenience, but a major embarrassment.

My talk is about the intersection between COVID-19 and food safety, but a South African tragedy is not far from my mind. The 2017-2018 outbreak in South Africa linked to Tiger Brand Polony was the largest recognized listeriosis outbreak in world history. There were over 1,000 laboratory-confirmed listeriosis cases from January 2017 to July 2018. There were at least 216 deaths, including 93 babies under one month of age. Many of those who survived were left with severe, life-long medical complications, and/or with the crushing grief of losing a child or another family member.

Without a doubt, the link between this human tragedy and Tiger Brand’s product is clear. A unique genetic strain of Listeria (ST6) was found in the blood or spinal fluid of the living or dead and in Tiger Brand’s plant and product.

Nearing three years since Tiger Brand’s Polokwane meat processing facility was announced as the source of the outbreak in March 2018, there has been scant progress in the civil action seeking justice for members of the Listeria Class Action filed against Tiger. The people harmed, or the families of those killed by Listeria-tainted polony consumption, are still uncompensated, which only exacerbates their losses.

In addition, despite the overwhelming evidence against Tiger, and the numbers of illnesses and deaths, the South African criminal justice system has remained silent. But why? Perhaps it is time for the South African state to look at criminal punishment as a way of reinforcing that sickening 1,000 of your customers (and killing 200) is far from acceptable.

Perhaps the United States is no longer in a position of showing how it is done, but there are in fact good examples where companies have been held criminally liable for poisoning consumers.

In 1998, in what was the first criminal conviction in a large-scale food-poisoning outbreak, Odwalla Inc. pleaded guilty to violating federal food safety laws and agreed to pay a $1.5 million fine for selling tainted apple juice that killed a 16-month-old girl and sickened 70 other people. Odwalla, based in Half Moon Bay, California, pleaded guilty to 16 counts of unknowingly delivering “adulterated food products for introduction into interstate commerce” in the October 1996 outbreak, in which a batch of its juice, contaminated with the toxic bacteria E. coli O157: H7, sickened people in Colorado, California, Washington, and Canada. As a result of the outbreak, fourteen children developed a life-threatening disease, namely hemolytic uremic syndrome, (HUS) that ravages kidneys. Odwalla was also on court-supervised probation for five years, meaning that it had to submit a detailed plan to the Food and Drug Administration (FDA) demonstrating its food safety precautions and that any subsequent violations could have resulted in more serious charges.

In 2012, Eric Jensen, age 37 and Ryan Jensen, age 33, brothers who owned and operated Jensen Farms, a fourth-generation cantaloupe operation located in Colorado, presented themselves to U.S. marshals in Denver and were taken into custody on federal charges brought by the U.S. Attorney’s Office and the FDA’s criminal law enforcement arm (the Office of Criminal Investigation). According to the six-count indictment, Eric and Ryan Jensen unknowingly introduced adulterated (Listeria-tainted) cantaloupe into interstate commerce. The indictment further stated that the cantaloupe was prepared, packed, and held under conditions that rendered it injurious to health. The outbreak sickened over 147, killing over 33, in 28 states in the fall of 2011. The Jensens faced up to six years in jail and $1,500,000 in fines each. They eventually pleaded guilty and were sentenced to five years’ probation.

In 2013, Austin “Jack” DeCoster and his son, Peter DeCoster, both faced charges stemming from a Salmonella outbreak caused by their Iowa egg farms in 2010. The Salmonella outbreak ran from May 1 to November 30, 2010, and prompted the recall of more than half a billion eggs. And while there were 1,939 confirmed infections, statistical models used to account for Salmonella illnesses in the U.S. suggested that the eggs might have sickened more than 62,000 people. The family business, known as Quality Egg LLC, pleaded guilty in 2015 to a federal felony count of bribing a USDA egg inspector and to two misdemeanors of unknowingly introducing adulterated food into interstate commerce. As part of the plea agreement, Quality Egg paid a $6.8-million fine and the DeCosters $100,000 each, for a total of $7 million. Both DeCosters were sentenced to (and ultimately spent) three months in jail.

In 2014, former Peanut Corporation of America owner Stewart Parnell, his brother and one-time peanut broker, Michael Parnell, and Mary Wilkerson, former quality control manager at the company’s Blakely, Georgia, plant, faced a federal jury in Albany, Georgia. The 12-member jury found Stewart Parnell guilty on 67 federal felony counts, Michael Parnell was found guilty on 30 counts, and Wilkerson was found guilty of one of the two counts of obstruction of justice charged against her. Two other PCA employees pleaded guilty as well. The felony charges of introducing adulterated food into interstate commerce “with the intent to defraud or mislead” stemmed from a 2008-2009 Salmonella outbreak that sickened 714 and left nine dead. In 2015, Steven Parnell was sentenced to a 28-year prison term. His brother Michael was also convicted of multiple felony counts and sentenced to 20 years.

In 2015, ConAgra Foods agreed to plead guilty and pay $11.2 million in connection with the shipment of Salmonella-contaminated peanut butter linked to a 2006-2007 nationwide outbreak that sickened over 700. ConAgra signed a plea agreement admitting that it unknowingly introduced Peter Pan and private label peanut butter contaminated with Salmonella into interstate commerce during the 2006-2007 outbreak.

In 2020, a federal court in Texas sentenced ice cream manufacturer Blue Bell Creameries to pay $17.25 million in criminal penalties for shipments of contaminated products linked to a 2015 listeriosis outbreak. The plea agreement and criminal information filed against Blue Bell alleged that the company distributed ice cream products that were manufactured under insanitary conditions and contaminated with Listeria monocytogenes, in violation of the Food, Drug, and Cosmetic Act. According to the plea agreement, Texas state officials notified Blue Bell in February 2015 that samples of two ice cream products from the company’s Brenham, Texas factory tested positive for Listeria monocytogenes, a dangerous pathogen that can lead to serious illness or death in vulnerable populations such as pregnant women, newborns, the elderly, and those with compromised immune systems. Blue Bell, again, chose not to issue any formal notification to its customers (which included military installations) regarding the positive tests. Blue Bell pleaded guilty in May 2020 to two misdemeanor counts of distributing adulterated ice cream products. The $17.25 million fine and forfeiture amount was the largest-ever criminal penalty following a conviction in a food safety case at the time.

In 2020, Chipotle Mexican Grill agreed to pay a $25 million criminal fine and institute a comprehensive food safety program to resolve criminal charges that it adulterated food that sickened more than 1,100 people across the United States from 2015 to 2018. The Justice Department charged Chipotle with two counts of violating the Federal Food, Drug, and Cosmetic Act by adulterating food while held for sale after shipment in interstate commerce. In conjunction with the criminal information filed in United States District Court in Los Angeles, prosecutors also filed a deferred prosecution agreement in which Chipotle agreed to pay $25 million – the largest fine ever imposed in a food safety case to this day. The criminal charges stem, in part, from incidents related to outbreaks in Chipotle restaurants of norovirus, a highly contagious pathogen that can be easily transmitted by infected food workers handling ready-to-eat foods and their ingredients. Norovirus can cause severe symptoms, including diarrhea, vomiting, and abdominal cramping.

Perhaps South Africa can take a few pages out of the Department of Justice’s criminal prosecution playbook and get justice for the victims, as well as send a warning to food manufacturers to focus on food safety.  With over 1,000 sick with over 200 dead, justice demands it.

Bill Marler is a proud trial lawyer, managing partner at Marler Clark, publisher of Food Safety News, and is involved in the Class Action against Tiger Brands.

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