Federal prosecutors are close to concluding a criminal investigation into last falls deadly listeria outbreak linked to cantaloupes grown at Jensen Farms in southeastern Colorado, the I-News Network has learned.
Interviews and newly obtained documents also show:
Conflicts of interest in food safety audits of the farm near Holly are deeper and more widespread than previously reported.
Private inspection company Bio Food Safety has joined Jensen Farms in filing for bankruptcy, while a settlement fund established for victims of the outbreak is millions of dollars short.
A memo obtained by I-News shows how private auditing firms might escape liability in foodborne illness cases.
The latest food safety law, characterized as a sweeping reform by the Food and Drug Administration, leaves untouched the problems that allowed Jensen Farms to distribute its tainted melons.
Last year, Jensen Farms cantaloupe were found to be tainted with the pathogen listeria monocytogenes, sickening 147 people, the Centers for Disease Control reported. Another 37 deaths are believed to be associated with the outbreak, making it the deadliest in nearly a century.
Dozens of civil lawsuits have been filed but await bankruptcy proceedings before they can move forward. I-News also has learned that prosecutors initiated a grand jury investigation last fall, just weeks after the melons were recalled.
Federal investigators could file criminal charges against the farm within the next few weeks, said a source close to the investigation.
However, criminal charges could lead to only a small fine.
Selling adulterated food is a felony. But doing so without knowledge or intent to defraud consumers is a misdemeanor, penalized by up to a year in prison or a $1,000 fine.
I-News obtained a memo prepared after the outbreak by a law firm that advises private food safety auditing companies.
The memo outlined how companies could avoid liability for sickness and death because consumers never review their auditing reports.
And even if consumers did see the reports, the memo argued, they need to take steps to protect themselves. Either way, inspectors should be able to escape with no liability.
No food safety auditing company has ever been found liable in litigation brought by consumers, said Bill Marler, an attorney who represents 42 separate victims in lawsuits against Jensen Farms.
Two private food safety auditing companies were involved in the Jensen Farms case. Jensen Farms hired PrimusLabs, a California-based company, to audit the farm. PrimusLabs in turn subcontracted the work to Texas-based Bio Food Safety.
If either company is found partially responsible for the outbreak, the case could set a new legal precedent for an industry that critics say lacks accountability.
On July 27, Bio Food Safety filed for Chapter 11 bankruptcy. The company then filed a motion to consolidate its case with Jensen Farms, which filed for bankruptcy in May.
The two companies, along with Pepper Equipment, have agreed to a settlement, Marler said. Together, they have placed about $4.5 million in a settlement pool.
Victims must submit claims for a portion of that money by Sept. 14. As of July 23, medical bills amounted to more than $6.5 million for Marlers clients alone, not counting the half dozen victims represented by other attorneys. Marler said he is considering suing retailers for the remainder.
Although the conflicts of interest inherent in private food inspections have been widely reported, the conflicts found at Jensen Farms go deeper. The company that inspected the operation had previously acted as a consultant to the farm.
Little comprehensive data exists on the scope of the private auditing industry, which isnt regulated by the FDA. The agency had never been to Jensen Farms before the outbreak.
But one model for fixing food safety auditing may already exist. Its called the Global Food Safety Initiative, or GFSI.
Under GFSI guidelines, auditors must be uniformly trained and qualified. Problems found during GFSI audits must be fixed before a farmer, grower, or shipper can pass. Provisions safeguard against conflicts of interest like those in the Jensen Farms case.
In 2008, Walmart began requiring produce suppliers to undergo GFSI-approved audits. But ensuring GFSI audits takes time, Wal-Mart learned. A letter issued by Walmart to produce suppliers in 2010 shows the retailer extended the deadline for GFSI certification to December 2011, a move that allowed Jensen Farms contaminated cantaloupes to reach Walmarts shelves last year.
Additional reporting contributed by Jeff Green, Nathaniel Herz, Benjamin Sales and Sean Easter. The I-News Network is a nonprofit newsroom collaborating with Colorado news organizations to cover important issues. Learn more at iNewsNetwork.org.