Partner Glenn Pogust Discusses Jensen Farms Criminal Charges in Food Quality & Safety

Food Quality & Safety reports that Eric and Ryan Jensen, the owners of a cantaloupe farm where contamination problems resulted in the deadliest Listeria outbreak in the United States in decades, are facing criminal charges of adulteration of a food and aiding and abetting. They are expected to plead guilty to the charges according to a deal with federal prosecutors. However, the Jensens are also filing a lawsuit against the food-safety auditor who visited the farm a month before the outbreak and gave it a “superior” rating, arguing that the auditor should have picked up on any contamination problems then.

According to Kaye Scholer Product Liability Partner Glenn Pogust, “Although the idea of criminal charges may seem more troubling to producers, civil liability in these cases may yield even greater penalties.” He continues, “I suspect that, as we go forward, there may even be the imposition of the concept of strict liability. It won’t matter whether the owners of the farm knew there was a problem, but the controlling factor would be that there was contamination at the farm, and the person in the best place to bear that risk is the producer. Even short of criminal prosecution, it is clear that the FDA is going to want to be more aggressive in imposing fines and citing unsafe practices. And civil judgments can far exceed criminal fines by many factors.”