Spinach plants probed; E. coli kills boy

By LISA LEFF, Associated Press Writer
Thu Oct 5 2006, 7:46 PM ET

SAN FRANCISCO - As federal agents launched a criminal investigation into two produce companies involved in the contaminated spinach outbreak, Idaho health officials confirmed the death of a 2-year-old boy Sept. 20 was caused by tainted spinach.

Kyle Allgood was the second confirmed death in the E. coli outbreak, which also killed a Wisconsin woman.

"This confirms what we suspected for quite some time," said Ross Mason, a spokesman for the Idaho Department of Health and Welfare. "Confirming that, though, was important information and will help us in the future if we have similar situations."

The boy, who would have turned 3 in December, died in Salt Lake City after developing a type of kidney failure caused by E. coli. Health officials had to wait for the results of genetic testing on the bacteria to determine whether his illness was from fresh spinach.

The criminal probe is 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 eir 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.

Tests on spinach recalled from grocers point to nine spinach farms that supplied produce to Natural Selection, one of the nation's largest distributors of bagged salads. The company issued a statement Wednesday saying it was confident in the cleanliness of its plant and pointing the finger at growers. A spokeswoman said they had no further comment on Thursday.

Growers Express operates a food-safety program in which small-scale farmers pay the company to provide health and safety inspections and maintain databases of audit reports. The company turned over these audit reports to the FDA and
FBI on Wednesday.

"We make a policy of having our records available," said Vice President Woody Johnson. "We're not sophisticated enough to even try to hide this."

A 1996 case against juice-maker Odwalla was the first criminal conviction stemming from mass food poisoning. Although investigators never determined how the E. coli got into the apple juice, the company was held criminally liable because its juice was unpasteurized, which allowed the bacteria to thrive. Odwalla pleaded guilty and paid a $1.5 million fine — at the time the largest food-injury fine in FDA history. The outbreak also led to new pasteurization and labeling requirements for fruit juices.

Since then, the act has been used to prosecute other companies. In 2001, Sara Lee Corp. pleaded guilty to selling adulterated hot dogs and lunch meats and paid a $200,000 fine after a nationwide outbreak of listeriosis killed 15 people and caused six miscarriages.

Authorities also have prosecuted farmers and processors under federal clean-water laws and other environmental statutes in mass-poisoning cases.

In the same year as the Odwalla convictions, a California 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.

Companies involved in tainted food cases are not always prosecuted, however. In 1993, a major E. coli outbreak sickened about 700 people and killed four who ate undercooked Jack in the Box hamburgers. That outbreak led to tighter Agriculture Department safety standards for meat and poultry producers, and the chain paid millions to victims' families to settle lawsuits.

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Associated Press writers Rebecca Boone, Juliana Barbassa and Rachel Konrad contributed to this report.