On January 28, United States Magistrate Judge Michael Hegarty sentenced Eric and Ryan Jensen (no relation to our highly esteemed partner and blog contributor Marnie Jensen) to five years of probation, six months of home detention, 100 hours of community service, and $150,000 in restitution to each victim of the deadly 2011 listeria outbreak. The outbreak, which the USDA’s Food Safety and Inspection Service traced back to Jensen Farms, resulted in 33 deaths and sickened 147 people in 28 states. The brothers were charged with six counts of Introducing an Adulterated Food into Interstate Commerce in violation of 21 U.S.C. § 331. Although criminal charges are unusual in cases like this, the FDA argued that criminal prosecution was justified here due to the “special responsibility” that food processors bear to “ensure that the food they produce and sell is not dangerous to the public.” The situation is tragic, but there are some important lessons that we can learn from these events.

The FDA and Center for Disease Control’s investigation ultimately determined that the root cause of the outbreak was the farm’s failure to utilize an anti-bacterial spray component of their newly installed cantaloupe cleaning system. However, just one month prior to the 2011 listeria outbreak, the farm’s operation was inspected and certified by PrimusLabs and given a “Superior” rating with an overall score of 96%. According to the Complaint that Jensen Farms has now filed against Primus, the lab was engaged to conduct an audit of Jensen Farms to insure that its produce was fit for human consumption and that the farm’s production practices were in compliance with industry standards and FDA requirements. Primus also conducted an inspection of the farm in 2010 and in that audit raised concerns that the hydrocooler used in processing the cantaloupe was a “hot spot” for contamination due to its use of recirculated chlorinated water. As a result, according to the Complaint, Jensen Farms installed new processing equipment which used city water and brushes to clean the cantaloupe and removed the hydrocooler from the system. Jensen alleges that it specifically pointed out these changes to the inspector who noted them on his report, but did not question the removal of the hydrocooler or advise the farm that the new system was below industry standards, Primus’ audit standards, or relevant FDA guidelines. Jensen claims that they relied on Primus’ “Superior” rating to reasonably believe that their production practices were safe and met industry standards and that Primus’ failure to advise Jensen of the danger presented by the removal of the hydrocooler was the cause of the listeria outbreak.

Assuming Jensen Farms’s allegations are true, can the farm recover all or part of their damages from a third-party auditor who negligently conducts an inspection? According to the Restatement (Second) of Torts § 324A, maybe. The Restatement of Torts is a treatise published by the American Law Institute that summarizes the general principles of United States tort law, but that law can vary from state to state, so your actual mileage may vary. However, if the court applies section 324A to the Jensen Farms suit, Primus may find itself in serious trouble. Section 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if:

  1. his failure to exercise reasonable care increases the risk of such harm, or
  2. he has undertaken to perform a duty owed by the other to the third person, or
  3. the harm is suffered because of reliance of the other or the third person upon the undertaking.

“Reasonable care” is a legal term which means “a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.” The primary factors that courts consider in determining whether an act (or a failure to act) comports with the reasonable care standard are (a) the foreseeable likelihood that the conduct will result in harm; (b) the foreseeable severity of that harm; and (c) the burden that would be imposed to eliminate or reduce the risk of harm. From that perspective, the question is not what someone off the street would have done if they had inspected Jensen Farms, but whether a “reasonable” inspector in Primus’ position would recognize the potential problem posed by Jensen’s failure to utilize an anti-bacterial system in their processing, recognize that this failure presented a risk of harm, and take some action as a result. Significantly, Jensen Farms argues that the “burden” on Primus was minimal in that their obligation was simply to inform Jensen of the deficiency. It will be interesting to see how this litigation progresses given the potential impact it could have on food producers and certification agencies.

For food producers, the Jensen Farms situation highlights the importance of not relying solely on third-party certifiers to determine whether your production practices are safe and in compliance with industry standards and governmental regulations. Ultimately, as the criminal prosecution of the Jensen brothers makes clear, the responsibility for food safety rests on the producer. For certification agencies, the lesson is that inspectors must document potential food safety problems discovered during inspections. The failure to do so could have dire consequences.