Will tainted peanuts land anyone in jail?
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, FDAImports.com.
Federal officials won’t comment on the criminal investigation springing from the current salmonella outbreak. The FDA is working with the U.S. Department of Justice and the FBI on the probe.
In 1996, the FDA levied a $1.5 million fine against Odwalla Inc., a California juice maker, for selling apple juice tainted with E. coli that lead to the death of a Colorado teenager. The company pleaded guilty to 16 counts of misdemeanor food adulteration.
However, 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.
Atlanta attorney and former federal prosecutor Buddy Parker said he doesn’t expect the investigation of Peanut Corp. to be either swift or narrow.
“It strikes me that they’ll use a task force approach,” said Parker. “The FDA will bring its expertise in food, the U.S. attorney’s office its expertise as a prosecuting body, and the FBI for its expertise in criminal investigations — and I think the Department of Justice in Washington will be involved.”
Parker said the investigation could be broadened to include fraud.
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 anyway.
A misdemeanor conviction carries a maximum sentence of a $1,000 fine and one year in prison.
Should the government prove that a company knew its products were contaminated and proceeded to market them, the misdemeanor is elevated to a felony. The maximum fine for felony adulteration is $10,000. The maximum prison sentence 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 don’t often do that.
“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 Saint Leo, Fla. “But it’s not a perfect world.”
The speed of the investigation of the Peanut Corp. is hard to determine.
“I would be shocked if they indicted before the end of the year,” said England, noting the complexity of the case, which will require scientific testimony, lab matches and evidence whether Peanut Corp. accidentally or knowingly sent bad peanut butter and other products to market, and who ultimately is responsible for that decision.
The U.S. Senate and House held hearings on the outbreak last month amid wider calls for tougher regulation of food safety by the FDA. But a change in administration may slow the process, said Atlanta defense attorney Don Samuel.
“The Obama administration may appoint a new U.S. attorney in the Middle District of Georgia,” which has jurisdiction over Blakely, said Samuel. “If they do that, they may wait until the new attorney takes over before pursing it.”
Samuel said he expected the prosecutors to pursue company owners and managers because Peanut Corp. has filed for Chapter 7 bankruptcy liquidation.
“At this point nobody really cares about the corporation being prosecuted,” he said. “The question is individuals and then, which individuals?”