Brothers Eric and Ryan Jensen each pleaded guilty Oct. 22 to six federal criminal misdemeanors in relation to the 2011 listeria monocytogenes outbreak linked to Jensen Farm cantaloupes that killed at least 33 people.

Magistrate Judge Michael Hegarty set sentencing for Jan. 28, 2014. Each misdemeanor charge carries up to one year in prison and up to $250,000 in fines.

The case marks the first time growers have faced federal criminal charges in relation to a foodborne outbreak. Officials with the Peanut Corp. of America are facing more than 70 criminal charges related to an outbreak associated with their products, but they are not growers.

Bob Whitaker, chief scientific officer for the Newark, Del.-based Produce Marketing Association, said recently the industry has always known criminal charges were possible under federal law, but many are shocked that the law has been applied.

Whitaker said the Food Drug and Cosmetic Act of 1938 prohibits food marketers from sending product to the marketplace that has an adulterant, and pathogens are considered adulterants. However, legal activity aimed at growers surrounding foodborne outbreaks in produce have previously been limited to civil lawsuits, he said.

The Jensen brothers surrendered to federal authorities Sept. 26 in Denver. A Dec. 2 trial date was set for the case. The brothers each posted bonds of $100,000 and were released, said Jeffrey Dorschner, spokesman for the U.S. Attorney’s office in Denver.

They are each charged with six misdemeanor criminal counts related to the 2011 cantaloupe-related listeria outbreak that killed at least 33 people and sickened 147 in 28 states. The charges were for allegedly introducing adulterated cantaloupe into interstate commerce and aiding and abetting.

Jensens plead guilty in criminal cantaloupe caseThe case against Jensen Farms

Court documents in the case say the cantaloupe growers knew their fruit was possibly contaminated and that it needed to be washed before being packed and distributed.

The case information states the Jensens bought used potato packing equipment from Pepper Equipment Co. in May 2011. The Jensens had Pepper Equipment modify the packing machines so a pan could be attached to allow the cantaloupes to be bathed in a chlorine spray.

However, according to the case information, the Jensens did not hook up the spray wash.

“Investigation by the FDA and the Center for Disease Control determined that the defendants failed to adequately clean their cantaloupe” the government’s information states.

Jim Gorny, PMA’s vice president of food safety and technology, is quoted in government’s case information against the Jensen brothers. He was senior advisor for produce safety at the FDA’s Center for Food Safety and Applied Nutrition at the time of the outbreak and the federal investigation. “Their actions allegedly resulted in at least six shipments of cantaloupe contaminated with listeria monocytogenes being sent to 28 different states. Ten additional deaths not attributed to listeriosis occurred among persons who had been infected by eating outbreak-related cantaloupe.”

“According to James Gorny, … Jensen Farms significantly deviated from industry standards by failing to use an anti-microbial such as chlorine in the packing of their cantaloupes during the summer of 2011,” the case information states.

“Gorny added that the conveyer used in the process spread contamination and essentially ‘inoculated’ the cantaloupes with listeria monocytogenes. Dr. Gorny opined that the Primus Labs subcontractor that conducted the pre-harvest inspection of Jensen Farms was seriously deficient in their inspection and findings.”