When Farmers Get Arrested for Foodborne Illnesses

When tainted lettuce gets put in American salads or listeria breaks out in your supermarket fruit aisle, who is responsible?

Until recently, if you said “the farmer,” you’d be wrong.

The reason E. coli, salmonella, toxoplasmosis, and other bacteria sicken 48 million Americans a year is because they can be anywhere at any time. Some foodborne illnesses come in contact with our food while it grows in the ground, others through handling and packing. Unless there’s a full-fledged outbreak, it’s difficult to tell whether your food poisoning came from the grocery store or the field. Except for some recent cases, the law has been fine cataloguing food poisoning as an Act of God. But increasingly too few sources have caused too many deaths and hospitalizations and the issue of blame has become impossible to ignore. One farm’s harvest of contaminated food no longer feeds one hundred people but one thousand.

The CDC estimates that each year 1 in 6 Americans will get sick because of foodborne illness and 3,000 people will die. Yet, even if the government decides a case is worth pursuing in court, it’s still rare that anyone does more than pay a fine for these charges.

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“If you’re gonna cause an outbreak, don’t kill a bunch of people.” This is attorney Bill Marler’s advice to farmers. He’s a partner of Marler Clark, which bills itself as “The Food Safety Law Firm” and has represented the victims of food illness cases ranging from the 1993 Jack in the Box scandal that turned E. coli into a household name to the more recent Jensen Farms cantaloupe outbreak which left 33 people dead.

But he says that, overall, these cases are still highly atypical for food safety legislation. “It’s not like these prosecutors are sitting around wondering, gee, what can we do to prosecute farmers,” Marler says. The Jensens, he told me, were one of the few farmer-producers who have been sentenced (to six months of house arrest) without being convicted of having intent to deceive the public about the health of their produce.

In short, farmers only face criminal prosecution when the case is so egregious that the state, FDA, or USDA has no other choice.

In the last five years, there have only been a handful of cases that have led to jail time for farmers or producers. Michigan farmer James Ruster was recently sentenced to 14 to 18 months in state prison producing cider that sent four people to the hospital and sickened several others. In 2011, the aforementioned brothers Eric and Ryan Jensen’s listeria-contaminated cantaloupes killed 33 people in Colorado, a crime which got them five years probation, home detention, as well as $300,000 in fines.

In short, farmers only face criminal prosecution when the case is so egregious that the state, FDA, or USDA has no other choice.

Rena Steinzor, professor of law at the University of Maryland and president of the Center for Progressive Reform, doesn’t believe our current regulatory system and its lax punishments have the ability to keep us safe. “The FDA is an agency that is very important and we need to enable it to do its job,” she said. “Short of that, when people kill people through their negligence we should put them in jail.” She thinks that the criminal penalties seen in the Jensen case are a positive step to making farmers hyper-vigilant about food safety.

The trouble is that the FDA and USDA simply don’t have enough inspectors, time, or money to ensure that even domestically produced food is safe for consumption. In 2011, the FDA only inspected 11 percent of all facilities under its jurisdiction and an even smaller percent of food imports. Updates to the original food safety legislation — the 1906 Pure Food and Drug Act or the broader 1938 Federal Food, Drug, and Cosmetic Act — sound good on paper but stretch an already thin agency even further.

Theoretically, the 2011 Food Safety Modernization Act would give the FDA more leeway in preventing food safety issues (rather than our current system that reacts to problems after they’ve already made people ill). Yet a lack of funding for both the FDA and many of the FSMA programs have made some wary of believing they’ll be able to do their job properly. The way we harvest and grow our food keeps getting bigger while the distribution systems sprawl in ever-more direction. We’re struggling to find the best way to keep people safe without costing farmers too much. In the meantime, increasing penalties for breaking food safety standards might be our best Plan B.

While the USDA’s Food Safety Inspection Service is legally required to have a ‘sufficient number of inspectors present in every meat and poultry plant in the country,’ this is not the case for fruits and vegetables.

If the punishment for sickening people is too large to take lightly, everyone from company CEOs to small farmers will make sure they’ve gone through all the necessary steps to keep food free from contamination. It’s the same mentality that makes murder punishable by decades-to-life in prison. Until now, we’ve been dealing with a system that treats foodborne illness as a sort-of inevitability. “The long and short of it is that our traditional ways of ensuring food safety are lagging,” Steinzor said.

While the USDA’s Food Safety Inspection Service is legally required to have a “sufficient number of inspectors present in every meat and poultry plant in the country” according to a recent statement (without it, the plant has to cease operations), this is not the case for fruits and vegetables.

Farms who gross less than $500,000 annually and sell the majority of their products in direct sales are exempt from on-the-books produce safety standards. Beef producers, on the other hand, need a USDA-approved plant to sell their meat to consumers – whether its one cow or three-thousand. Though poultry is responsible for the most deaths each year (19 percent) according to a CDC study of foodborne illness from 1998-2008, 46 percent of all illnesses are a result of ingesting contaminated produce, leafy vegetables in particular.

In Michigan, James Ruster was neither approved to make cider nor did he listen to multiple warnings that he wasn’t meeting state safety standards. When his disregard for food safety laws sent people to the hospital, there was no question that it was due to “blatant neglect,” as Michigan’s Agricultural and Rural Development office said. Would people have been spared a trip to the emergency room if he’d known about the 14-month prison sentence coming his way? Maybe it’s time to find out.

Considering how many millions of people get sick every year from foodborne illnesses, criminal prosecutions, whether felony or misdemeanor, are incredibly rare events. There has been some worry that recent upgrades to food safety laws would place an undue burden on small farmers. If we’ve put standards in place that are impossible to follow financially, then we need to find better ways to ensure our food is safe, not circumvent the law.

No one wants to advocate for criminal penalties if farmers are doing everything right. But today, there are some who are not — whether it’s because of a lack of knowledge or a fear of increased overhead. 3,000 deaths and millions more hospitalizations a year make it clear that “don’t kill a bunch of people” is no longer a system that works. If we don’t find one that does, criminal penalties for farmers or processors will likely be something we see more of in the future.

When Farmers Get Arrested for Foodborne Illnesses