In another show of force against food processors, federal prosecutors in Colorado recently brought criminal charges against two brothers who owned a cantaloupe farm linked to a 2011 listeria outbreak that killed 33 people. The charges filed on September 24, 2013, serve as a reminder that food processors and manufacturers—and others subject to the Food, Drug, and Cosmetic Act (FDCA)—can be prosecuted even for unintentional conduct.

According to the six-count Information and other court records, Eric and Ryan Jensen introduced adulterated cantaloupe that allegedly “bore and contained” a poisonous bacteria into interstate commerce. Notably, the government does not allege that the Jensens intended to do so. If convicted of all six misdemeanor counts, the Jensens each could face up to six years in prison and up to $1.5 million in fines.

According to John Walsh, U.S. Attorney for the District of Colorado: “[Food processors] bear a special responsibility to ensure that the food they produce and sell is not dangerous to the public. Where they fail to live up to that responsibility, and as these charges demonstrate, this office and the Food and Drug Administration have a responsibility to act forcefully to enforce the law.”

The Jensens’ prosecution comes on the heels of an indictment that was unsealed earlier this year against four employees of Peanut Corporation of America, which was linked to a 2009 salmonella outbreak that killed nine people and sickened hundreds. The 76-count indictment in the Middle District of Georgia includes allegations that the defendants introduced adulterated and misbranded food into interstate commerce with the intent to defraud or mislead.

In light of recent events, it is important now more than ever for food processing and manufacturing companies, and those in the distribution chain, to ensure that they are in compliance with their obligations under the FDCA. Ballard Spahr attorneys advise companies on FDCA compliance and defend organizations and individuals being investigated for potential FDCA violations.

If you have further questions about the FDCA’s requirements, please contact Henry E. Hockeimer, Jr., at 215.864.8204 or, Mark R. Gaylord at 801.531.3070 or, or the Ballard Spahr attorney with whom you work.

Copyright © 2013 by Ballard Spahr LLP.
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