Feds rarely file charges in tainted food cases

[February 02, 2009]  ATLANTA, Ga. (AP) -- As federal officials launch a criminal investigation into a Georgia peanut processor at the center of a deadly salmonella outbreak, food safety experts say they hope it's a signal that the government plans to be more aggressive in prosecuting other cases in the future.

Food safety watchdogs and legal experts say criminal charges have only been brought against a handful of companies involved in high-profile outbreaks though federal law allows cases to be prosecuted without proof the company knew it was distributing contaminated food. They say the law is not used often because there has been little will to pursue criminal charges in all but the most noteworthy and outrageous cases, and that has put the public at risk.

"Part of that system is the ability to penalize the people that fail," said Michael Taylor, a food safety scientist at George Washington University. "And there's been a real failure to do so at the federal and state level."

Food safety advocates hope that is starting to change.

The Food and Drug Administration said Friday it has asked the Justice Department to launch a criminal investigation into Virginia-based Peanut Corp. of America, which authorities say shipped products that initially tested positive for salmonella after retesting and getting a negative result. At least 529 people have been sickened as a result of the outbreak, and at least eight may have died because of it. More than 430 products have been recalled.

If they decide to press charges, prosecutors could use the 1938 Federal Food Drug and Cosmetic Act, which gave the government leeway to charge food manufacturers if they were responsible for contaminated food. The Supreme Court gave prosecutors more leverage in 1975 when it ruled they didn't have to prove the companies knew the food was contaminated.

The ruling prompted only a modest increase in prosecutions.

"There have been innumerable times they could have prosecuted but didn't," said Bill Marler, a Seattle-based food safety lawyer who has filed two lawsuits against Peanut Corp. of America over the recent outbreak. "My sad speculation, frankly, is that prosecutors in the U.S. on the Justice Department side or state side don't see poisoning people with food for profit as a crime."

The Food and Drug Administration said it doesn't track food-related prosecutions separately, but said its investigative arm logged 341 arrests and 279 convictions in 2006. Many of those involved counterfeit medicines and faulty or tampered products, which also fall under its jurisdiction.

Recent convictions include the 1996 case against juice-maker Odwalla Inc., which was fined $1.5 million on charges of shipping unpasteurized apple juice that killed a baby.

Five years later, Sara Lee Corp. was fined $200,000 after pleading guilty to misdemeanor charges of selling tainted meats in a listeria outbreak that killed 15 people.

The FDA also points to prosecutions in lower-profile cases, such as the 2007 conviction of a man who made false reports to investigators after a mix-up led to antibiotics being dumped into unpasteurized milk at a New York farm.

Although cases may not yield criminal charges, firms are often targeted with a flood of civil lawsuits seeking monetary damages. In some cases, the companies also agree to tighten testing standards and spend more money on safety measures.

A 1993 E. coli outbreak that sickened about 700 people and killed four who ate undercooked Jack in the Box hamburgers never yielded prosecutions, but did lead to tighter Agriculture Department safety standards for meat and poultry producers.

Federal charges also were never filed against ConAgra in the 2002 E. coli outbreak that prompted a massive meat recall and sickened at least 19, or the company's 2007 peanut butter recall after a salmonella outbreak spread to more than 400 people.

And prosecutors decided against pursuing charges against two produce companies involved in the 2006 tainted spinach case, saying the investigation found the growers and processors did not deliberately skirt the law.

Part of the problem, attorneys say, is that prosecutors aren't using other criminal charges to pursue cases. In the current outbreak stemming from tainted peanut butter, Georgia agricultural officials had said they would consider pursuing state manslaughter charges if federal authorities did not take up a case against the peanut processing plant in rural southwest Georgia.

"If a U.S. attorney wanted to prosecute this as a felony, there are enough statutes they could use to charge it out as a felony," said Fred Pritzker, a food safety lawyer in Minneapolis who has filed a wrongful death lawsuit on behalf of a 72-year-old woman whose death may be linked to the current outbreak.

Eric Greenberg, a Chicago-based attorney who defends food and drug companies, said some prosecutors also may shy away from such cases because they take time and manpower for an agency that's already stretched thin.

"It's not a high hill to climb for a prosecutor," he said. "It takes a lot of time, but in terms of what they have to prove, it's not too difficult to prosecute because they don't have to prove intent."

There are signs the political will may be shifting toward more aggressive prosecution.

On Friday, President Barack Obama pledged more oversight of food safety to prevent breakdowns in inspections, and White House press secretary Robert Gibbs said the president plans to put in place a "stricter regulatory structure" to bolster the food safety network.

State and federal lawmakers are also considering a host of changes to food safety policy, including a measure that could require companies to submit all test results to the FDA. Federal officials say Peanut Corp. did not initially tell investigators about in-house test results that found salmonella.

A congressional hearing scheduled in February could also delve into other areas where lawmakers can stiffen penalties.

"I hope this hearing will help bring to light not only what went wrong," said Rep. Bart Stupak, D-Mich., who heads a congressional panel conducting its own inquiry. "But also what FDA and industry can do to prevent future outbreaks."

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On the Net:

U.S. Food and Drug Administration, http://www.fda.gov/

[Associated Press; By GREG BLUESTEIN]

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