![]()
It has been a busy past several weeks for public health investigators (and lawyers) and uncomfortable (and sometimes deadly) for food poisoning victims, as well as for the management of several companies. Here are just a few of the outbreaks hitting the news: Salmonella Cucumbers: As of Nov. 18, 2015, 838 people infected with the outbreak strains of Salmonella Poona have been reported from 38 states. The number of ill people reported from each state is as follows: Alabama (1), Alaska (17), Arizona (129), Arkansas (13), California (232), Colorado (19), Connecticut (1), Florida (1), Hawaii (1), Idaho (24), Illinois (9), Indiana (5), Iowa (7), Kansas (2), Kentucky (1), Louisiana (5), Maryland (1), Minnesota (40), Missouri (14), Montana (16), Nebraska (8), Nevada (16), New Hampshire (1), New Mexico (32), New York (6), North Dakota (8), Ohio (3), Oklahoma (13), Oregon (22), Pennsylvania (2), South Carolina (10), South Dakota (3), Texas (42), Utah (58), Virginia (1), Washington (25), Wisconsin (43), and Wyoming (7). Four deaths have been reported from Arizona (1), California (1), Oklahoma (1), and Texas (1). On Sept. 4, 2015, Andrew & Williamson Fresh Produce voluntarily recalled all cucumbers sold under the “Limited Edition” brand label during the period from Aug. 1, 2015, through Sept. 3, 2015, because they may be contaminated with Salmonella. E. coli Chipotle: Forty-five people infected with the outbreak strain of STEC O26 have been reported from six states. The majority of illnesses have been reported from Washington and Oregon. The number of ill people reported from each state is as follows: California (2), Minnesota (2), New York (1), Ohio (1), Oregon (13), and Washington (26). The epidemiological evidence available to investigators at this time suggests that a meal item or ingredient served at Chipotle Mexican Grill restaurants in several states is a likely source of this outbreak. The investigation has not identified what specific food item is linked to the illnesses. E. coli Costco Chicken Salad: A total of 19 people infected with the outbreak strain of Shiga toxin-producing STEC O157:H7 have been reported from seven states. The majority of illnesses have been reported from western states. The number of ill people reported from each state is as follows: California (1), Colorado (4), Missouri (1), Montana (6), Utah (5), Virginia (1), and Washington (1). The epidemiological evidence available to investigators at this time suggests that rotisserie chicken salad made and sold in Costco stores is a likely source of this outbreak. The Montana Public Health Laboratory tested a sample of celery and onion diced blend collected from a Costco location. Preliminary results indicated the presence of E. coli O157:H7. Laboratory testing is ongoing to isolate the E. coli bacteria and then determine the DNA fingerprint. The celery and onion diced blend was supplied to Costco by Taylor Farms Pacific Inc. and was used to make the Costco rotisserie chicken salad eaten by people sickened in this outbreak. Could a person in a “position of responsibility or authority in a firm” face criminal sanctions in connection with these outbreaks? Perhaps. Should they? That is a debate to have. It would make me nervous if I sat in a position of authority with one of the companies above or one of their suppliers. By way of background, Congress passed the Federal Food, Drug, and Cosmetic Act (FDCA) in 1938 in reaction to growing public food safety demands. The primary goal of the Act was to protect the health and safety of the public by preventing deleterious, adulterated or misbranded articles, including food, from entering interstate commerce. Under section 402(a)(4) of the Act, a food product is deemed “adulterated” if the food 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.” A food product is also considered “adulterated” if it bears or contains any poisonous or deleterious substance which may render it injurious to health. Chapter III of the Act addresses prohibited acts, subjecting violators to both civil and criminal liability. Felony violations include adulterating or misbranding a food, drug, or device, and putting an adulterated or misbranded food, drug, or device into interstate commerce. Any person who commits a prohibited act violates the FDCA. A person committing a prohibited act “with the intent to defraud or mislead” is guilty of a felony punishable by years in jail and millions in fines, or both. The key here is whether it is an intentional act. A misdemeanor conviction under the FDCA, unlike a felony conviction, does not require proof of fraudulent intent, or even of knowing or willful conduct. Rather, a person may be convicted if he or she held a position of responsibility or authority in a firm such that the person could have prevented the violation — prevented the tainted product from entering interstate commerce. Again, unlike a felony, a misdemeanor charge is a crime with no intent. Convictions under the misdemeanor provisions are punishable by not more than one year, or a fine of not more than $250,000, or both. Here are four recent cases where prosecutors brought criminal charges. The first three were misdemeanor charges and the last was a felony charge: So, are the producers of cucumbers, chicken salad or burritos (or ingredient suppliers) likely to face criminal prosecution? Perhaps not, given the recent history of no prosecutions in similar cases. Here are four outbreaks where no charges have been brought, at least not yet: (To sign up for a free subscription to Food Safety News, click here.)
