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When is a potato washer not a potato washer? When it’s washing cantaloupes

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Food companies have been at the forefront of technological innovation and scientific research and development for decades upon decades. Cursory attention to the items we eat — how those items are grown, sourced, processed, and packaged – provides ample evidence of scientific research and development and technological innovation in the food industry. Simultaneously, food companies are justifiably concerned about protecting their brand names, market share, liability risks, and consumer relations.  

Over the most recent 30 years, food companies have increasingly paid attention to advocacy groups and segments of consumers who are adverse to many scientific discoveries and technological innovations. Indeed, it does not seem incorrect or overblown to talk about a trend toward fear of science and technology with regard to food. Speakers at any number of conferences on food and the food industry have presented on the topic of consumer fears of food technology.

Food companies have heard these talks and read their surveys about consumer risk-aversion.  Companies have responded by educating consumers about the safety of products, providing labeling for information and for reassurance, such as the term “natural,” and by changing ingredients or sourcing to respond to niche markets or consumer pressures. Advocates of organic foods constantly barrage the consuming public with messages, explicit or implied, that organic foods free of modern science and technology are better for health.

Herein lurks a dilemma for food companies. When do food companies stop responding to consumer fears?  When do food companies decide that food safety built on science and technology must trump fear? When do food companies decide that nutritious food must trump wide-spread, but false, beliefs about what is healthier and more nutritious. Let us consider a cautionary tale.

Eric and Ryan Jensen owned a farm in the American state of Colorado. They grew cantaloupes. In the waning months of 2010, the Jensen brothers, responding to their perception of consumer demands and their own beliefs about farming practices, decided to make operational changes in the farming enterprise. They decided to move toward organic certification for the farm and their cantaloupe processing shed. They decided to move away from chemicals thereby adopting a core belief of organic agriculture – opposition to synthetic chemicals.

Within a year of their decision to move away from chemicals and towards organic production, their 2011 harvest of cantaloupes caused the most deadly food poisoning outbreak in 100 years in the United States. At least 33 people died from eating Jensen Farms cantaloupes. Their cantaloupes had Listeria monocytogenes on the rinds.

What was the crucial decision the Jensen Brothers made that allowed listeriosis to survive on their shipped cantaloupes? The Jensen Brothers abandoned the use of a chlorine rinse as a step in the processing of the cantaloupes for shipment to buyers. While the Jensen Farms facility also had other food safety violations, the change from a chlorine rinse to a potable, municipal water rinse was the key change.

The Jensen Brothers abandoned the chlorine rinse because they wanted to use fewer chemicals in their food production. Under U.S. National Organic Production (NOP) standards, processing facilities may use chlorine rinses but those standards encourage the use of alternatives to chlorine rinses in order to promote the philosophy of not using synthetic chemicals.  NOP classifies chlorine as a synthetic chemical.

By 2014, the Jensen Farms was in bankruptcy from the civil monetary damage lawsuits brought by those who had suffered from the food poisoning. They had pleaded guilty to misdemeanor criminal charges for placing adulterated food products into the stream of American interstate commerce. A judge had sentenced them to five years probation, six months of in-house detention, and a fine of $150,000. They avoided going to prison.  

But their conduct, and several other concurrent food safety incidents, have led many commentators to urge prosecutors routinely to seek criminal prosecutions in food safety events.  Indeed, the officers of the Peanut Corporation of America, producing organic peanut butter, were sentence to lengthy prison terms for their intentional violations of food safety standards. 

The Jensen brothers’ decision to follow the trend of consumer and societal antagonism to science and technology in farming and the food industry led to their travails. The Jensen brothers are not an isolated food safety incident. 

The Chipotle Mexican Grill, a U.S. chain of fast-food outlets, has similarly caused harm. Their leaders marketed “food with integrity,” meaning the pursuit of food trendiness and the avoidance of science in agriculture, while they downplayed food safety as the top priority. Hundreds who ate at Chipotle outlets in 2015 came down with various food poisonings. The company now faces numerous civil monetary damage lawsuits. Their officers face criminal investigations. Jensen Farms redux.

These true stories should be a cautionary tale to the food industry. Abandoning science and technology in farming and the food industry carries significant risks that food safety will suffer, that consumer harm will follow. 

Drew Kershen

About the author: Drew L. Kershen, who is the Earl Sneed Centennial Professor of Law Emeritus, University of Oklahoma, College of Law. Professor Kershen taught agricultural law for more than 30 years. Since 1997, he has focused his research, writing, and speaking on agricultural biotechnology law and policy. He retired in 2012.

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