Eating Dangerously Read online

  The emails between company executives uncovered by the federal investigation were damning. In one, Michael Parnell told his brother Stewart that the company could provide fictitious testing analysis to customers if needed. “Truthfully if a customer called and needed one that was for say two pallets or so they would create one. Most of the time smaller people will accept one produced with your company heading on it that looked professionally done. The girl in TX was very good at white-out,” he wrote.

  In another, Stewart Parnell wrote, “Shit, just ship it,” after he was told Salmonella test results were not ready yet and would cause a delay for the customer.

  And another: An employee advised before shipping an order of peanut meal, “They need to air hose the top off though because they are covered in dust and rat crap.” It wasn’t the only mention of rodents in company emails.

  Mary Wilkerson, who began as PCA’s office receptionist and eventually became quality assurance manager, answered “MICE!” to a coworker who emailed asking, “Where do you think all this [sic] coliform positives are coming from? Would you say it is the negative air pressure in the plant bringing in airborne pathogens? Like over that rancid peanut butter along the fence?”

  In a 2008 email exchange regarding questions from the FDA about why a customer had rejected its shipment of peanuts, Stewart Parnell and fellow executive Daniel Kilgore apparently agreed to give false information. They decided to tell FDA investigators the shipment was rejected because the peanuts were not cut to the right size. The truth was that the nuts possibly contained metal fragments. “We all need to have our stories straight if and when we are questioned by the FDA,” Kilgore wrote.

  Kilgore was the first executive named in the indictment to cooperate with federal authorities. He pleaded guilty to conspiracy to commit fraud, conspiracy to introduce adulterated and misbranded food into interstate commerce, introducing adulterated food into interstate commerce with the intent to defraud, plus several other charges. His attorney declined to comment.

  After the indictment was released, Michael Moore, U.S. attorney for the Middle District of Georgia, said the defendants “cared less about the quality of the food they were providing to the American people and more about the quantity of money they were gathering while disregarding food safety.”5

  In one email from 2008, Parnell berated employees for wasting 1,374 pounds of peanut products left over from production. “I am not sure anyone down there quite understands how SERIOUS this is. . . . These are not peanuts you are throwing away every day. It is money. It is money. It is money. It is God Damn Money.”

  The law firm representing Stewart Parnell had this to say after the indictment: “As this matter progresses it will become clear that Mr. Parnell never intentionally shipped or intentionally caused to be shipped any tainted food products capable of harming PCA’s customers.”6 It may be years longer before consumers and regulators get any satisfactory answers about what really happened—and who knew it—inside the peanut plants.

  When it comes to testing food products before shipping, proper protocol is to throw out any batch that tests positive and figure out the problem. When a sample from a batch tests positive, that doesn’t mean the entire batch is contaminated. Multiple tests from the same batch could come up with varied results.

  The testing process is particularly tricky with foods such as peanuts. Salmonella bacteria doesn’t spread evenly; tests aren’t going to find it on every peanut. It depends on the sample, so it’s possible, even probable, that a sample from one batch of peanuts could come out clean while another sample from the same batch could turn up contaminated with Salmonella. If PCA received a positive test, the company at times had the same batch of peanuts tested by another lab or the same lab in the hope the second test would find a clean spot in the pile and come back negative for Salmonella, according to the indictment.

  The FDA’s Office of Criminal Investigation began the probe into the Georgia peanut plant, which led to the FBI executing search warrants. FDA inspectors visited PCA’s plant in January 2009 and found at least a dozen samples from the company’s production were contaminated in 2007 and 2008, but the corporation did not clean up the problem. The company filed for bankruptcy in 2009.7 After four years, a federal grand jury finally convened in Georgia in the fall of 2012 to hear testimony about the outbreak.

  Many of the products shipped from the plant in Blakely, Georgia, ended up as jumbo-sized buckets of peanut butter used in school cafeterias, nursing homes, and rehabilitation centers. The list of potentially contaminated products in 2008 was in the thousands, the recalls extensive and costly. The list of recalled products went on for pages. Among those jumbo-sized tubs of peanut butter laced with Salmonella bacteria was one purchased by a rehabilitation center in Minnesota.

  After treatments that eliminated her brain tumor, Shirley Almer’s doctors sent her to a rehab center next to the University of Minnesota Hospital that was supposed to help her get stronger. She wasn’t up to her usual strength, and she was extra picky about what she would eat, refusing almost any nourishment but for chicken and peanut butter toast. The rehabilitation center kept an industrial-sized tub of peanut butter for its residents, and Shirley’s daughter Ginger toasted a slice of bread and smeared it with peanut butter for her mother almost every day. And each day, Shirley would nibble a few bites. Only a few bites.

  At first, Shirley was outperforming doctors’ expectations as she recovered from radiation to treat the tumor and the damage left behind by seizures brought on by the mass in her brain. Physicians said she might not regain the use of her arms and legs. But she did. After about two months in the rehab center, she was released to her family. She spent weekdays with Ginger in Brainerd, Minnesota, and then on weekends she would go to her own home in Perham, about an hour away. Her five children took turns watching her on weekends.

  Just before Thanksgiving, it was Jeff’s turn to watch his mother. She had been getting weaker and was doing worse than when she left the rehab center. She wasn’t eating much, was losing weight, and was sleeping more than she should. She was too weak to walk.

  “I literally carried her out of her house for the last time,” Jeff recalled. At Brainerd Hospital, she was diagnosed with severe dehydration and a urinary tract infection; there was an infection in her blood, but it was unclear what exactly was wrong with her. No one mentioned Salmonella yet. No one in her family had any clue it was food poisoning that was killing her. Doctors tried to clear the infections and said she could go home December 22 to spend Christmas with her family.

  Jeff was shoveling snow when his sister called December 21, 2008. The ice storm was fierce. “You better get up here,” Ginger said. “They don’t expect her to last the day.”

  When Jeff and his wife arrived at the hospital in Brainerd, nurses were wheeling out a cart of refreshments: finger sandwiches and cookies. He knew it was what they must give people who are hanging around waiting for someone to die. “It will be OK. You can let go,” he said to his mom through tears. “She was hanging on just for us,” Jeff said. “She had fought and fought and fought. I hugged and kissed her. It felt like a dramatic movie scene, and I was living it.”

  Shirley was having trouble breathing because of fluid in her lungs. The doctors were correct—she didn’t last the day.

  Her family thought she had died of pneumonia. On Christmas Day, four days later, Jeff opened the shirt and GPS unit his mother had bought for him before she took a turn for the worse. The emptiness he felt consumed him.

  After the holidays, on a day in January about three weeks after Shirley died, the Minnesota health department called Ginger and asked if she had a few minutes to talk about what Shirley had eaten in the months before she died. The hospital had reported to the state health department that Shirley had Salmonella, although her family hadn’t been told. Ginger mentioned her mother ate mostly chicken and peanut butter at the end of her life.
/>   Several days later, Jeff noticed an Associated Press blurb in the Minneapolis Star Tribune about a Salmonella outbreak that so far was linked to the death of a northern Minnesota woman. He called his sister, and she called the state health department. Yes, health authorities told her, that’s your mother you read about, and we’re sorry you had to find out like this. “If it’s any consolation, what you told us she ate has been key to solving this outbreak,” Jeff recalled a health official saying.

  About a month later, in February 2009, Jeff testified at the congressional hearings into the peanut butter bacteria outbreak that killed Shirley and eight others. He assumed, until that day, that the plant that shipped the contaminated peanuts was simply careless. But when congressional staff released the smoking-gun emails, showing PCA chief executive Parnell apparently ordered the peanuts shipped even though he was told they were tainted, Jeff was outraged. “I was completely dumbfounded and shocked,” he said.

  Jeff turned to the son of another victim. “Can you believe this shit?” he asked him. “This guy is going to be in prison in about a month.” And he thought to himself, “What would happen to me if I just got up right now and went over and gave that guy one straight shot to the chops?” He remembered Parnell’s hands were shaking. Outside the hearing room, Jeff told a television reporter he had a message for Parnell. “I hope you never get Alzheimer’s because I want you to remember this day for the rest of your life,” he said.

  By the time the grand jury convened in Georgia, Jeff had met with investigators from the FBI and the U.S. Department of Justice more than once. “To me, it’s nine murders,” Jeff said he told them.

  Shirley’s children joined other families in a lawsuit against Peanut Corporation, which filed for bankruptcy. The families of the nine victims were each awarded a piece of $12 million available, divided, to put it bluntly, on the calculated value of each of their lives. Shirley’s life, negotiators determined, was worth $98,000.

  “They hadn’t seen what my mom did in beating cancer,” Jeff said. “This was a woman planning to go home for Christmas. That was stolen from her.”

  The 2008 to 2009 Salmonella peanut butter outbreak sickened more than seven hundred people and spread to forty-six states.8 Nearly four thousand products linked to the tainted peanuts were recalled. President Barack Obama promised a top-to-bottom look at America’s food safety system. He was particularly concerned about children, mentioning his daughter Sasha ate peanut butter “probably three times a week.”

  As with many of its more sensitive issues, the FDA responds reluctantly and obscurely to questions about its criminal investigation process. And it responds in writing. The FDA declines to describe how it decides who is worthy of pursuit, or how often it tries to make a case.

  If a criminal investigation of Peanut Corporation executives was slow and difficult, any case against product manufacturers that used peanut ingredients from the company was a stretch, especially since those companies allegedly were getting falsified certificates of analysis with their deliveries. Dozens of companies had received shipments of peanuts to use in ice cream, crackers, bars, and other snacks, and many of those companies were sued along with PCA.

  Attorney Justin Prochnow, among the nation’s most well-known food and diet supplement safety lawyers, represented an energy bar manufacturer that used nuts from PCA. When lawsuits start flying, the food chain generally goes as it did in this case: the energy bar company sought reimbursement from the manufacturer that made the faulty ingredient, and that manufacturer sought reimbursement from PCA. It’s often the case that four or five food manufacturers are involved in the finishing of one product that, like an energy bar, might have ten to fifteen ingredients. In most cases, there is no evidence manufacturers meant to make anyone sick, or that they completely disregarded safety standards while knowing people would get sick. “Intentional fraud is the only time where you are going to see the FDA take criminal action,” Prochnow said.9

  Just as felony charges are rare, so are misdemeanors. Many food safety advocates wish the government would pursue lesser charges rather than none at all. Even if food company owners who sickened people faced no jail time for their actions, misdemeanor charges would send a message—and the public would hear about it. But in general, federal prosecutors seek evidence of willful negligence to elevate cases to felonies, which makes them worth pursuing.

  Two years after the cantaloupe outbreak that killed thirty-three people in 2011, federal prosecutors announced misdemeanor charges against two longtime family farmers from rural Colorado. Legal experts had doubted the charges would ever come, unless food safety officials intended to make a political statement that so many deaths could not go unpunished.

  The decision not to prosecute the outbreak as a felony, experts said, stemmed from the fact there was no evidence that brothers Eric and Ryan Jensen meant to harm anyone, or knew they had a problem. They had hired a third-party auditor to inspect their farm and had received a glowing report. Fatal flaws in harvest—mainly using a dirty potato sorter and holding melons in water baths—might be considered negligent, but perhaps not willfully negligent. Agricultural experts who talked to the Jensen family said the brothers actually believed changes in harvest procedure in 2011 would make melons safer.10

  No evidence has emerged during lawsuit fact-finding or congressional queries that the Jensens knew of any dangers from their cantaloupes before state and federal investigators tracked Listeria to their farm. The Jensens bought a used potato-sorting machine not designed for cantaloupe use, which allowed water to pool dangerously and helped spread the Listeria, the FDA said. The third-party auditor noted the Jensens stopped using antibacterial agents in a new one-pass, clean-water washing system since criticized by others, but the auditor did not suggest they change it.

  Ryan Jensen and others at the farm told University of California–Davis cantaloupe expert Trevor Suslow that they believed their new system was an improvement over past packing methods. Though Suslow disagreed, he acknowledged there was no definitive statement in FDA growing guidelines on a single safe method of cleaning, cooling, or packing.

  Such ambiguity from the FDA makes prosecution difficult, if not impossible. Food and drug regulations provide misdemeanor and felony charges for cases of “adulterated” food, which includes selling contaminated food. The mere presence of an adulterant on food can justify the charges, regardless of intent. Misdemeanors can result in fines and up to a year in jail.

  To elevate a prosecution to a felony, federal officials would have needed evidence the Jensens knew what they were doing was dangerous, or knew they had contamination and delivered melons anyway, said Amanda Hitt, an attorney and director of the Food Integrity Campaign in Washington, D.C. “There are elements for a felony where the ‘knowing’ element has to be there. Is a jury really going to find that?” Hitt asked.

  Among the few food-poisoning outbreaks that resulted in a criminal conviction was the case against juicemaker Odwalla, which sold apple juice tainted with E. coli in 1996. Odwalla—the company but not individual executives—pleaded guilty to federal criminal charges in 1998 after the juice killed a Denver toddler and sickened more than sixty others. The California juicemaker was sentenced to five years’ probation and was forced to pay a $1.5 million fine after pleading guilty to sixteen misdemeanor charges for “delivering adulterated food products.”11

  A grand jury inquiry into the food poisoning found Odwalla had contracts with suppliers to use only apples picked from trees, not fallen fruit that could be contaminated by animal feces. But the company didn’t verify what suppliers provided. Odwalla did not pasteurize its juice by heating it to bacteria-killing temperatures before the outbreak. Now it does. Earlier in 1996, the U.S. Army rejected Odwalla juice because the company’s plant-sanitation program did “not adequately assure product wholesomeness for military consumers.”12

  The largest fine for violating U.S. food-and-dr
ug law didn’t result from a food-poisoning case but from a case of fraud—a baby food company advertising sugar water as 100 percent apple juice. In 1987, a grand jury investigation led to a $2 million fine and 215 violations of federal law against Beech-Nut Nutrition Corporation for selling phony apple juice. The juice was apple-flavored water with corn syrup and beet sugar.

  Two Beech-Nut executives were sentenced to jail time and community service.13

  But what about in cases when there is perhaps no fraud or conspiracy, just a lackadaisical disregard for safety?

  Another of the United States’ most egregious food-illness outbreaks, and one of the most disgusting, has resulted in no criminal charges. Reading inspection reports written after the Wright County Egg farm outbreak of 2010 is enough even to make the most strong-stomached among us feel queasy.

  FDA investigators found decaying mice, chicken carcasses, and manure piled so high that the chicken-house door wouldn’t shut. A month after that outbreak, owners of the Wright County Egg farm were lambasted by the U.S. House Energy and Commerce Committee. The bad eggs sickened hundreds of people across the country. The farm received 426 positive results for Salmonella between 2008 and 2010, yet it continued its practices, according to documents obtained by the House committee.14 The government’s criminal investigation into the outbreak, which involved a grand jury in Iowa, resulted in a bribery conviction of a manager at the egg farm. But no one has been charged directly for causing the outbreak that sickened so many. Former DeCoster Farms manager Tony Wasmund pleaded guilty in 2012 to conspiring to bribe a federal inspector to allow the sale of restricted eggs. Wasmund was accused of authorizing spending $300 in petty cash for use as a bribe for a USDA inspector months before the outbreak.15

  Wasmund had been informed of Iowa State University lab reports in the months before the outbreak showing Salmonella was found in the internal organs of dead chickens at the farm, according to federal documents.