A possible Spinach Crime

[Guest guest]

FBI seeks signs of crime in raid on spinach firms

By Ken McLaughlin and

Mercury News

a.. Statement from Natural Selection Foods (PDF)

In a startling twist to the E. coli outbreak that has flummoxed federal and

state investigators, agents for the FBI and FDA on Wednesday executed two search

warrants on two Salinas area companies, saying they were looking for evidence of

a crime.

The two companies were Growers Express of Salinas and Natural Selection Foods of

San Bautista -- the company whose bagged spinach is at the center of the

outbreak. It was unclear how Growers Express -- which grows and packs produce in

the Western United States and Latin America -- fits into the probe.

An FBI spokesman said agents from the bureau had been involved in the case ``for

quite some time.''

``There's no indication this was tampering. There's no indication this was

terrorism or anything like that,'' said Special Agent ph Schadler. But in a

clue as to why the two businesses were raided, Schadler said there could be

criminal violations if growers or distributors did not take steps required to

ensure the spinach was safe.

Schadler said investigators may look into possible violations of environmental

laws as well as parts of the federal Food, Drug and Cosmetic Act.

News of the FBI's involvement raised echoes of the 1996 E. coli outbreak linked

to juice produced by Odwalla, a Northern California company that was convicted

on criminal charges for not preventing contamination of its products. The

company paid $1.5 million after pleading guilty to 16 misdemeanors stemming from

an outbreak that killed a toddler and caused dozens of others to become sick in

several Western states and Canada.

ph , the federal prosecutor in that case, said courts have ruled that

food suppliers have ``strict liability'' in contamination cases, meaning they

can be found guilty of a misdemeanor simply for distributing contaminated food

across state lines, knowingly or not. The intent of the law is to make suppliers

take responsibility for ensuring the safety of their food.

Depending on the statutes involved, Schadler said, authorities may not have to

show intentional violation of the law to prove a crime. Still, he emphasized

that the U.S. Attorney's Office could end up filing no charges in the case.

The latest E. coli outbreak has so far killed one person and sickened at least

192 others in 26 states and Canada.

FBI and Food and Drug Administration officials were mum on what they might have

found Wednesday. But Sweat, Natural Selection's chief operating officer,

said agents had requested paperwork, including documents already provided to the

FDA and the California Department of Health Services.

Bill Marler, a Seattle attorney whose firm is representing 93 victims in the E.

coli outbreak, said the federal agents could have been looking for ``missing

quality assurance documents.''

``It would be a problem for the company if they are lost or, worse, destroyed,''

he said.

In the statement, however, Sweat vigorously defended the firm's integrity and

food-safety practices.

``All tests performed on our processing facilities, both those done by

independent scientists and government investigators, have been . . clean,'' he

said. ``We continue to believe that the source of the contamination was in the

fields from which we buy our spinach.''

Sweat made a similar statement at a news conference last week at which he

announced that all spinach, lettuce and other leafy greens entering the

company's processing plant are now undergoing random sampling for E. coli,

salmonella and other pathogens.

Several farmers said they were shocked to hear of the FBI's involvement.

``This is just very disturbing. Just the indication that they've taken this step

is bad,'' said Cumming, president of MetzFresh, a spinach grower in King

City and Salinas.

Many spinach growers have suffered severe financial losses since the

contamination outbreak surfaced last month.

``We've had a really bad two or three weeks now, and this just piles on,'' he

said, adding: ``If something was done illegally, that's not the standard of our

industry.''

Officials at Growers Express did not issue any comment on the raids. The company

grows and packs iceberg lettuce sold under the Green Giant Fresh label and Farm

Day packaged spinach. It has 40,000 acres of fields in California, Arizona,

Mexico and Peru.

While many food-safety cases are handled administratively, criminal prosecutions

have increased since the Odwalla case. The exact cause of the spinach outbreak

has yet to be found, but in the Odwalla case, authorities never determined the

source of the contamination either. They suspected it originated in the feces of

workers or cattle that had migrated into the orchards. While the government did

not contend that Odwalla acted maliciously, it said the company failed to take

adequate precautions. Odwalla has since started a flash-pasteurization process.

The same strain of E. coli also was implicated in a food contamination case

involving hamburgers sold by Jack in the Box restaurants in 1993. No one was

prosecuted in that case, linked to the death of four children in the Pacific

Northwest.

Under the federal Food, Drug and Cosmetic Act, it can be a misdemeanor to

distribute any contaminated food through interstate commerce. It can be a felony

if authorities can show evidence of intent or a previous violation of the act.

Penalties for a felony can include a $10,000 fine, three years in prison or

both.

Authorities also have prosecuted farmers under federal clean-water laws and

other environmental statutes.

In the same year as the Odwalla convictions, a Central Valley dairyman was

convicted on misdemeanor charges after authorities accused him of dumping

thousands of gallons of wastewater contaminated with animal feces and urine into

nearby creeks.

Bruhn, a food scientist and director of the Center for Consumer

Research at the University of California-, said that kind of prosecution is

``a really good deterrent'' for other food producers who might be tempted to cut

corners.

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Ortiz, RD

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