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Laws to tackle tainted-food cases seem to lack much bite

Jeffry Scott, Atlanta Journal Constitution

March 4, 2009

The salmonella outbreak associated with Peanut Corp. of America’s peanut products is one of the biggest tainted-food cases in recent history.

“In 15 years of litigating most of the major foodborne illness outbreaks in the U.S., the PCA case may well be the worst food-safety breach I have ever seen,” said Seattle food-borne illness attorney Bill Marler, who has filed multiple claims against Peanut Corp. in the recent outbreak.

But as federal investigators move forward, they also are aware that few food-related investigations turn into prosecutions and even fewer land anyone in jail.

In the salmonella outbreak that began last fall, nine people are believed to be dead from eating bad peanut products. More than 660 people have been sickened.

A federal criminal investigation of Peanut Corp. of America, the company federal officials have identified as the source of the salmonella, was opened on Jan. 30. The outbreak has been traced to the company’s Blakely plant, though the plant in Plainview, Texas, may have contributed to at least six illnesses in Colorado, officials in that state said.

The probe focuses on the violation of federal food “adulteration” laws, and doesn’t legally address the victims, said former Food and Drug Administration investigators and federal agents familiar with the investigation and prosecution of food-borne illness cases.

“It doesn’t matter if anybody got sick, or if anybody died,” said Benjamin England, a former investigator with the FDA’s Office of Criminal Investigations and a Washington attorney who runs an FDA consulting firm.

Federal officials won’t comment on the criminal probe springing from the current salmonella outbreak. The FDA is working with the U.S. Department of Justice and the FBI on the probe.

In 1998, the FDA levied a $1.5 million fine against Odwalla Inc., a California juice maker, for selling apple juice tainted with E. coli that led to the death of a Colorado teen. The company pleaded guilty to 16 counts of misdemeanor food adulteration.

In 2007, the president of Lantana, Fla.-based Atlantis Foods Inc. got 15 months after pleading guilty to a scheme to sell adulterated chicken salad and lobster dip.

Former investigators said laws governing food adulteration date to the 1938 Federal Food, Drug and Cosmetic Act. The act defines adulterated product as food that was “prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health.”

The provision offers two types of adulteration charges —- misdemeanor and felony. Intent defines the difference. A felony charge means the food was knowingly contaminated and put on the market. The maximum felony fine is $10,000. The maximum prison term is three years.

States where victims of tainted food were sickened or died can pursue charges such as manslaughter or negligent homicide, said former federal investigators and prosecutors. But states often don’t.

“In a perfect world, a state might be right in the middle of it [the investigation] right now,” said Rande Matteson, a former federal agent and chairman of the Department of Criminal Justice at Saint Leo University in Florida. “But it’s not a perfect world.”

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