Who audits the auditors? How rockmelons can turn deadly

96% and a stellar audit rating did not stop a US rockmelon farm from selling contaminated melons that killed 33 people. How much responsibility should the auditor bear?

In 2011, whole rockmelons contaminated with Listeria monocytogenes sickened 147 and killed 33 people in the US. The rockmelons were traced to Jensen Farms in south-eastern Colorado. The two brothers who owned the farm were indicted with six federal misdemeanour charges for “introducing adulterated food into interstate commerce”. They each faced up to six years in prison plus up to US$1.5 million in fines.

After seeing their farm forced into bankruptcy, Eric and Ryan Jensen have just been sentenced with each receiving five years’ probation, six months of home detention and $150,000 each in restitution fees to victims. Victim families have already received $3.8 million from the Jensens’ insurance policy.

Now consumers have every right to expect that the rockmelon they purchase from the supermarket will not kill them and will not make them sick. But where does responsibility lie for this contamination disaster?

Prior to this case there is no record of whole, unprocessed rockmelons causing sickness. Then there is the matter of auditing.

The Jensen brothers moved their rockmelons through the distributor Frontera Produce to retailers including Walmart and Kroger. Apparently Frontera “required” the farm to be audited by PrimusLabs, a California-based food-safety consultant that provides “internationally recognised audits” for food producers such as Jensen Farms.

Jensen Farms contracted with PrimusLabs for an audit of both its farmlands and its packing house. PrimusLabs then hired a subcontractor, Bio Food Safety, to conduct the actual audit. Just six days before the Listeria outbreak began, Bio Food Safety’s auditor, James Dilorio, gave Jensen Farms 96/100 and a “superior” rating.

There is no question that Jensen Farms was the source of the outbreak and several problem areas have been highlighted. The packing room floor had water puddles, the conveyor and washing system was difficult to clean, the melons were washed in town water without added chlorine sanitiser, the farm-warm melons were not pre-cooled before going into cold storage …

However, if you had just received 96/100 for your food safety audit would you be looking for problems?

The Jensen brothers had no intention of causing anyone any harm - they just wanted to run their farm and make a living for their families. There is no way the brothers could have been charged with murder as there was absolutely no “intention to cause harm”. If the brothers were charged with a felony they could quite justifiably plead “not guilty” and hold their audit results up as proof that they were endeavouring to do the right thing. The matter could stay before the courts for decades.

To avoid this, the brothers were charged with a misdemeanour. Unlike felony convictions, misdemeanour convictions do not require proof of fraudulent intent or even of knowing or wilful conduct. All that is required is that the person held a position of responsibility such that they could have prevented the violation. There is no need to even prove that the person knew of the violation - just that they could have stopped it.

The Jensen brothers could have stopped the contamination disaster so they had absolutely no option except to plead guilty.

With the farm bankrupt and each receiving five years’ probation, six months of home detention and $150,000 in restitution fees to victims, the brothers will now be able to sue the auditors, distributor and even the retailers.

Food safety is a basic consumer right and the responsibility for this safety needs to continue through the full distribution chain.

Walmart and Kroger required audits that they knew full well would generate a glowing inspection, all the while ignoring what was there to be seen. They used their market power to squeeze the supply chain of any profit that could have been invested in food safety while covering their own backs by setting the specifications for the “fresh fruits”.

The relationship between retailers and auditor is simply a conspiracy to keep product flowing through the chain of distribution at the lowest cost and an attempt to shield retailers from responsibility for the products they sell.

If the Jensen brothers had not met “Primus Certified” standards and so been “Primus Certified” they could not have sold and distributed their rockmelons in interstate commerce through Frontera.

They would also not be pleading guilty to federal misdemeanours and 33 people would not have died.

It is very easy to say that food processors should check their auditors - but how do you do that? And what can you do when the choice of auditor is dictated by those to whom you are selling your goods?

Food safety is a basic right and it is crucial that when foodborne disease outbreaks occur they are investigated and steps are taken to ensure that the problem cannot happen again.