Spinach Safety—Federal Criminal Investigation Launched

Spinach growers in California now have to worry about more than disappearing profits and lawsuits after the recent E. coli scare. A federal criminal investigation has now been opened “into accusations that some California spinach growers and distributors failed to take adequate measures to ensure that their spinach was safe before selling it.^[1]

Agents from the FBI and the Office of Criminal Investigations at the FDA [hereinafter OCI] executed search warrants at Natural Selection Foods in San Juan Bautista and at Growers Express in Salinas.^[2] While Natural Selection had already recalled all its spinach and had issued a statement saying that “all tests at [its] plant showed no contamination,” Growers Express, so far, has no official comment.^[3] Natural Selection, for its part, claims that the E. coli came from the fields from which its spinach is purchased.^[4]

According to US Attorney for the Northern District of California, Kevin V. Ryan, federal investigators are “investigating allegations that certain spinach growers and distributors may not have taken all necessary or appropriate steps to ensure that their spinach was safe before it was placed into interstate commerce.”^[5]

Under 21 U.S.C. § 331, it is a crime for someone to introduce into interstate commerce any food that is adulterated or misbranded.^[6] Adulterated food is food which has been “prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health.”^[7] A violation of section 331 can be punished with a fine of up to $1,000, imprisonment for up to one year, or both.^[8] However, if the violation is committed after a prior conviction for the same offense, or if it is committed with the intent to defraud or mislead, the punishment can be a fine of up to $10,000, imprisonment for up to 3 years, or both.^[9]

Before any violation of these laws is reported for criminal investigation, however, “the person against whom such proceeding is contemplated shall be given appropriate notice and an opportunity to present his views, either orally or in writing, with regard to such contemplated proceeding.”^[10]

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[1] Gardiner Harris and Libby Sander, US Opens Criminal Inquiry in Spinach Scare, Oct. 5, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] 21 U.S.C. § 331(a).
[7] 21 U.S.C. § 342(a)(3).
[8] Id. § 333(a)(1).
[9] Id. § 333(a)(2).
[10] Id. § 335.