Agents look for negligence by spinach producers

SAN FRANCISCO — In opening a criminal investigation into two produce companies involved in the contaminated spinach outbreak, federal agents are following a script first written a decade ago to hold companies responsible for mass food poisoning.

In 1996, authorities secured the first criminal conviction in a food poisoning case when juice-maker Odwalla Inc. was heavily fined for tainted apple juice that killed a baby. That was followed by a case against Sara Lee Corp. five years later, which led to a fine for tainted hot dogs and lunch meats that killed 15 people.

Federal officials do not think anyone deliberately contaminated the spinach with E. coli, which has killed one and sickened at least 193 others. Instead, the probe is focused on whether the companies took appropriate steps to make sure their products were safe to eat.

FBI and Food and Drug Administration agents spent 11 hours Wednesday searching Natural Selection Foods LLC and Growers Express, sifting through records for evidence indicating the spinach producers skirted proper food-handling procedures.

“We are looking more toward the food-safety issue at this point,” FBI spokesman Joseph Schrader said Thursday, adding that the investigation was in its early stages and may or may not lead to criminal charges. It could also spread to other spinach producers, he said.

Also Thursday, health officials in Idaho confirmed that the death of a 2-year-old boy was caused by tainted spinach. Test results showed that Kyle Allgood was infected with the same E. coli strain that also killed an elderly Wisconsin woman.

Legal experts say the companies do not need to have known that their products were contaminated to be convicted of criminal charges, only negligent in their duties to keep tainted foods from the market.

Lawyers involved in previous food-poisoning cases said the government will likely try to charge the companies under the 1938 Federal Food Drug and Cosmetics Act, which makes it a crime to sell or distribute “adulterated” products — any item deemed unsafe for human or animal consumption.

Distributing contaminated food through interstate commerce is usually a misdemeanor, but it can rise to a felony if authorities find evidence that company officials knowingly took action to compromise the safety of the food supply. Penalties can include jail time.

That would be hard to prove in this case, said Fred Pritzker, a food safety lawyer in Minneapolis who represents several victims in the recent spinach scare.

The federal Food Drug and Cosmetic Act is unusual because simply allowing contaminated foods into interstate commerce could result in criminal charges, even if there was no intent to violate the law, said Eric Greenberg, a law professor at the Illinois Institute of Technology.

“The result of prosecution under this statute is that you can be considered a criminal, and you may even go to jail, and it may simply be because you made a mistake, or one of your employees made a mistake,” he said.