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Is Jail Time the Solution to America’s Food Safety Problem?

For the first time in history, individual decision-makers are facing criminal charges for contaminated food.

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UPDATE, 9/21/15: Stewart Parnell, the former owner of Peanut Corporation of America, was just sentenced to 28 years in prison for knowingly shipping the salmonella-tainted peanut butter. His brother, Michael Parnell, received a 20-year sentence.

It's been more than eight years since nine people died and more than 700 were sickened from peanut butter processed at Peanut Corporation of America (PCA). Yet the executives held responsible are just now hearing their punishment: In about two weeks, two brothers, former PCA owner Stewart Parnell and broker Michael Parnell, will stand before the court to receive their jail sentences. Legal experts believe they could face 30 years of jail time, which would essentially be a life sentence for the 60-year-old Stewart Parnell.

At the trial, prosecutors filed thousands of pages of court documents showing peanut butter contaminated with salmonella was knowingly shipped and laboratory documents were forged to conceal test results. Federal inspectors reported a leaky roof as well as rat and cockroach infestations in the plant. In court documents reported by the Wall Street Journal, Stewart Parnell wrote the following email: "Shit, just ship it. I cannot afford to loose [sic] another customer." (His lawyers did not reply to our inquiry.)

For the first time in history, individual-decision makers responsible for selling food contaminated with foodborne bacteria are facing criminal charges that could lead to jail time, and corporations are paying out huge fines. In May 2015, ConAgra agreed to pay $11.2 million, the largest fine ever for a food safety case, after pleading guilty to shipping contaminated Peter Pan peanut butter in 2006 and 2007 that sickened at least 700 people in 47 states. The fines have raised eyebrows, and the threat of a long prison sentence for the Parnells sends a strong message.

"Food manufacturers don't think of food safety violations as a crime." — Bill Marler, of Food Safety News

But will millions in fines and the threat of jail time mean your food will be safer for it? Legal experts say there's more to it than writing a check or trading a wool pinstripe for a prison jumpsuit. And according to food-safety experts, real change requires shifts not only in legal actions, but also improvements in manufacturing practices and federal commitment to funding and simplifying our food safety system.

Bill Marler, legal attorney for many victims of foodborne illness and founder of Food Safety News, is frequently called on to speak to manufacturers about food safety. He says that many new and even experienced food company executives are not aware of just how culpable they are for food safety violations. "Food manufacturers don't think of [food safety violations] as a crime," he says, which is why the PCA case has "certainly gotten people's attention." This particular case sets a new precedent for enforcing an existing law, called the 1938 Federal Food Drug and Cosmetic Act (FD&C Act), which has historically been overlooked until now — four cases were tried from 1998 to 2012, as compared to four since 2013.

Left, Stewart Parnell at a 2009 House Energy and Commerce subcommittee hearing hearing. Right, Oregon Congressman Greg Walden (R) during the hearing. Both photos: Mark Wilson/Getty Images

Marler would like to see the PCA case also change the way attorneys think about food safety violations. "It's easier for people to think of selling crack on a street corner as a crime as opposed to thinking about a rat-infested food manufacturing plant as a crime," he says. But the jump in prosecuted cases is an improvement, Marler admits. Since 2013, four cases have been successfully prosecuted with convictions or guilty pleas, including ConAgra's guilty plea and $11.2 million fine, the Parnell brothers' peanut-butter outbreak, and the Jensen brothers' fine and probation sentence for a listeria-cantaloupe outbreak that killed 33 people in 2011. Jack DeCoster, an egg producer of Quality Eggs, received fines and three months in jail for a salmonella enteritidis outbreak in 2010 (tDeCoster is appealing the jail time).

So why after all these years are the courts taking action? Timothy Lytton, a professor of law at Georgia State University of Law and author of the upcoming book Outbreak, the Evolution of the U.S. Food Safety System, says the changes in the number of lawsuits are being driven by "consumer demand for safer food." In 2014, only one in 10 Americans reported they feel very confident their food is safe, according to a Food & Health survey released in June 2015 by the International Food Information Council Foundation. American confidence in food safety is so low, it's dipped far below approval ratings for the banking industry, which is at 26 percent, according to a 2014 Gallup Poll.

American confidence in food safety is so low, it's dipped far below approval ratings for the banking industry.

And while recent study by the Center for Science and Public Interest (CSPI) shows that consumer concern for food safety is up, fewer states are reporting outbreaks and fewer cases are being resolved. Only 29 percent of cases traced the contamination back to the source in 2012, as compared to 41 percent in 2003. "When states aren't detecting outbreaks, interviewing victims, identifying suspect food sources, or connecting with federal officials, outbreaks can grow larger and more frequent, putting more people at risk," CSP's former food safety director Caroline Smith DeWaal said in the report. DeWaal recently moved to the FDA to direct the safety of food imports.

Marler says other than popular opinion, an even bigger motivator for change is likely "the most powerful dad in the world," who happens to live in the White House. During the PCA peanut butter recall in 2007, President Barack Obama told Matt Lauer on the Today show that "at a bare minimum, we should be able to count on our government keeping our kids safe when they eat peanut butter. That's what Sasha [Obama, his younger daughter] eats for lunch, probably three times a week. I don't want to worry about whether she's going to get sick as a consequence of eating her lunch." Obama called for a full review to shake up and retool the FDA.

Part of this FDA shake-up was the administration's approval of the Food Safety Modernization Act (FSMA) in 2011, which is designed to repair the gaping holes and untangle the bureaucracy in the food safety system. The rules and respective budget are expected to be finalized by end of fiscal year 2016.

Photo: Mark Strozier/Flickr

Photo: Mark Strozier/Flickr

One example of how the FSMA could improve good manufacturing practices was recently uncovered in the Blue Bell ice cream listeria case. The deadly bacteria was found on non-food surfaces as early as 2013 in the Blue Bell plant that prompted the nationwide recall in April 2015. According to FDA inspection reports, employees at the plant did not report it. They instead killed the bacteria in the isolated area and never looked into why or where it came from.

It might seem shortsighted, but they were perfectly justified in doing so, as FDA and state laws did not require the plant to report any such issues. As a result of the recall, recent changes in laws in Texas and Oklahoma now require reporting. FSMA would require integration among state and federal laws so reporting mistakes like this would be less likely.

So will our food be safer if corporations pay huge fines and food-manufacturing executives are sentenced with jail time? It's a step toward greater accountability, especially for intentional actions. But even with the spike in convictions, Marler sees this as "selective prosecution" and most likely will not be long-term. "There has to be a balance," he says. He believes if every case were prosecuted, the Congress and Senate would find a way to rewrite the FD&C Act. "An Attorney General's office is not going to let a whole bunch of wealthy businessmen go to jail," he says.

"An Attorney General's office is not going to let a whole bunch of wealthy businessmen go to jail."

Other than jail time and changes to federal laws, Lytton sees progress in more stringent liability insurance policies, which inadvertently boost food safety for consumers. Insurance companies' internal risk-management consulting, designed to prevent losses, lead "companies to check out the [food] manufacturer before the policy is approved," Lytton explains. "They set the terms and conditions based on the risk." Insurance inspections would most likely be more frequent than federal or state inspectors have the budget to support, even with the introduction of FSMA. If a company is out of compliance, they have to measure up or can't get the insurance — ultimately, leading to systems that produce safer peanut butter.

But if parents are to truly feel safe when they dip a knife into a new jar of peanut butter, food scientists say there's more to be done. "It is important to point out that food science is a young and rapidly growing body of science and that we are only beginning to encounter what can go awry and how," says Kantha Shelke, PhD, of Corvus Blue LLC, a food science and research firm. "An in-depth understanding of food science and technology which embraces chemistry, microbiology, culinary and agricultural sciences is an imperative for food manufacturing."

The food industry will watch closely when the sentencing is announced for the Parnell brothers. It will shake many corporate executives right down to their wingtips — but by all accounts, there is much more to be done at the federal, state, and corporate level before Marler, the foodborne illness attorney, is out of work.

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