Agents look for negligence at spinach plants; experts say companies could be held liable

Thursday, October 5th 2006, 9:55 pm

By: News On 6

SAN FRANCISCO (AP) -- In opening a criminal investigation into two produce companies involved in the contaminated spinach outbreak, federal agents are following a script first written a decade ago to hold companies responsible for mass food poisoning.

In 1996, authorities secured the first criminal conviction in a food poisoning case when juice-maker Odwalla Inc. was heavily fined for tainted apple juice that killed a baby. That was followed by a case against Sara Lee Corp. five years later, which led to a fine for tainted hot dogs and lunch meats that killed 15 people.

Federal officials do not think anyone deliberately contaminated the spinach with E. coli, which has killed two and sickened at least 190 others. Instead, the probe is focused on whether the companies took appropriate steps to make sure their products were safe to eat.

FBI and Food and Drug Administration agents spent 11 hours Wednesday searching Natural Selection Foods LLC and Growers Express, sifting through records for evidence indicating the spinach producers skirted proper food-handling procedures.

"We are looking more toward the food-safety issue at this point," FBI spokesman Joseph Schadler said Thursday, adding that the investigation was in its early stages and may or may not lead to criminal charges. It could also spread to other spinach producers, he said.

Also Thursday, health officials in Idaho confirmed that the death of a 2-year-old boy was caused by tainted spinach. Test results showed that Kyle Allgood was infected with the same E. coli strain that killed an elderly Wisconsin woman.

Legal experts say the companies do not need to have known that their products were contaminated to be convicted of criminal charges, only negligent in their duties to keep tainted foods from the market.

Lawyers involved in previous food-poisoning cases said the government will likely try to charge the companies under the 1938 Federal Food Drug and Cosmetics Act, which makes it a crime to sell or distribute "adulterated" products -- any item deemed unsafe for human or animal consumption.

Distributing contaminated food through interstate commerce is usually a misdemeanor, but it can rise to a felony if authorities find evidence that company officials knowingly took action to compromise the safety of the food supply. Penalties can include jail time.

That would be hard to prove in this case, said Fred Pritzker, a food safety lawyer in Minneapolis who represents several victims in the recent spinach scare.

The federal Food Drug and Cosmetic Act is unusual because simply allowing contaminated foods into interstate commerce could result in criminal charges, even if there was no intent to violate the law, said Eric Greenberg, a food safety lawyer.

"The result of prosecution under this statute is that you can be considered a criminal, and you may even go to jail, and it may simply be because you made a mistake, or one of your employees made a mistake," he said.

Tests on spinach recalled from grocers point to nine spinach farms that supplied produce to Natural Selection, one of the nation's largest distributors of bagged salads. The company issued a statement Wednesday saying it was confident in the cleanliness of its plant and pointing the finger at growers. A spokeswoman said it had no further comment Thursday.

Growers Express operates a food-safety program in which small-scale farmers pay the company to provide health and safety inspections and maintain databases of audit reports. The company turned over those audit reports to the FDA and FBI on Wednesday.

"We make a policy of having our records available," said Vice President Woody Johnson. "We're not sophisticated enough to even try to hide this."

Although investigators never determined how the E. coli got into Odwalla's apple juice, the company was held criminally liable because its juice was unpasteurized, which allowed the bacteria to thrive. Odwalla pleaded guilty and paid a $1.5 million fine -- at the time the largest food-injury fine in FDA history. The outbreak also led to new pasteurization and labeling requirements for fruit juices.

Since then, the act has been used to prosecute other companies, including Sara Lee Corp. which pleaded guilty to selling adulterated hot dogs and lunch meats and paid a $200,000 fine.

Bill Marler, a Seattle lawyer who has represented dozens of clients in lawsuits connected to contaminated greens, said the government also could prosecute farmers and processors under federal clean water laws and other environmental statutes if they failed to safeguard irrigation water.

"When you have cows in such close proximity to fields and the cows are upstream, it doesn't take a rocket scientist to find that since cows are the biggest reservoir for (E. coli) and cows poop, maybe the outbreaks have something to do with cows," Marler said.

In the same year as the Odwalla convictions, a California dairyman was convicted of misdemeanor charges after authorities accused him of dumping thousands of gallons of wastewater contaminated with animal feces and urine into nearby creeks.

Companies involved in tainted food cases are not always prosecuted. In 1993, a major E. coli outbreak sickened about 700 people and killed four who ate undercooked Jack in the Box hamburgers. That outbreak led to tighter Agriculture Department safety standards for meat and poultry producers, and the chain paid millions to victims' families to settle lawsuits.