by Gabriella Agostinelli

In 2011, Colorado-based Jensen Farms was thrust into the national spotlight after its cantaloupes were linked to a 28-state listeria outbreak, which resulted in 33 deaths, sickened 150 people, and caused one miscarriage. Jensen Farms claimed bankruptcy soon afterwards and pleaded guilty last month to six counts of introducing adulterated food into interstate commerce (a misdemeanor). Ryan and Eric Jensen now await sentencing. (Note: prior to entering guilty pleas, each brother faced up to six years in prison and $1.5 million in fines.)

Eric Jensen’s attorney explains the brothers entered guilty pleas “because [the contamination] happened on their watch.” Despite accepting criminal responsibility, however, the brothers are now placing blame on their former food safety auditor for failing to warn them of contamination risks in 2011. Last month, the Jensens filed civil charges against auditor Primus Labs for negligence, breach of contract and unfair and deceptive trade practices.

In an audit conducted just weeks before the outbreak, Primus Labs’s subcontractor observed the equipment believed to have caused the Listeria contamination and yet gave Jensen Farms a score of 96% and a “superior” rating at the conclusion of its audit.  An FDA senior advisor for produce later found the audit “seriously deficient in its inspection and findings.”

A Congressional investigation of the Jensen Farms incident also identified the following problems with the third-party auditing system, which allowed the outbreak to occur:

  • Auditors’ findings not based on best farming practices or FDA guidance;
  • Auditors missing important food safety deficiencies;
  • Auditors lacking any regulatory authority and not reporting identified problems to the FDA or other authorities;
  • Auditors not ensuring that problems were resolved;
  • Auditors providing advance notice of site visits and spending only a short period of time on-site; and
  • Auditors having multiple conflicts of interest.

The Jensen Farms story is a cautionary tale for those who rely on auditors. Many large buyers require third-party food safety audits of growers and producers. Yet, as the Jensen Farms story demonstrates, such audits may not insulate the producers or buyers from the risk and liability of an outbreak. Although FDA has proposed new rules for accreditation of third-party auditors of imported foods, it does not regulate domestic auditors. Thus, farmers and producers must be careful to select well-qualified, rigorous auditors and to independently ensure they are meeting the strictest food safety standards. Hiring and following the advice of a food safety “expert” is no defense to either criminal or civil penalties for food facility owners – ultimate responsibility lies entirely with the farmer or processor.