OPINION

Not since the defunct Peanut Corporation of America’s CEO Stewart Parnell was convicted six years ago has an American food industry executive been in as much possible criminal jeopardy as former Blue Bell Creamery CEO Paul W. Kruse is now.

Most media outlets in the United States, including Food Safety News, over the weekend, reported on the filing of these criminal charges, most leading with the fact that Kruse is accused of conspiracy with other “known and unknown” Blue Bell employees in order to obtain “money from customers.”

While that charge may sound relatively close to the job description of a corporate executive in America, the added detail that makes it an alleged criminal conspiracy is the accusation that Kruse’s true goal was to conceal potential or confirmed listeria from “certain Blue Bell customers.”

Blue Bell went through a battle with Listeria, that most stubborn of pathogens with its all-to-common 30 percent fatality rate. Such battles often end with burning the company to the ground and rebuilding from the ground up. That’s essentially what Blue Bell did in recalling all its product from the market, shutting down all of its production, and furloughing almost all of its employees. It’s far from my first candidate for being a conspiracy of concealment.   

Then there was the fact that for almost the first time in history, science connected this unusual outbreak to five-year-old illnesses by linking them to listeria strains found at two of the Blue Bell production facilities. Until then, science found current illnesses involved an outbreak and identified others as they occurred.  

This fact alone made writing about Blue Bell like trying to drink from a fire hose for science and food safety writers. When Kruse retired two years ago, it was on a high note of recovery of the century-old family-owned business.

Blue Bell, as a company, has pleaded guilty to two misdemeanor counts of shipping products across state lines that were involved in the 2015 outbreak and it agreed to pay $19.35 million in civil charges. The company also has signed a secret plea agreement with the government that might not be favorable to Kruse. At this point, he is not charged with any interstate shipping of adulterated products.

Kruse has not yet appeared in U.S. District Court in Austin, TX, but when he does, he is expected to plead not guilty to one count of conspiracy and six counts of wire fraud. He could be sentenced to as much as 20 years in prison and $250 in fines on each count up to $1 million.

Parnell, too, was charged with multiple counts of fraud and those convictions added significantly to his sentence of 28-year prison sentence. But a side-by-side comparison of the wire fraud charges against Parnell and those just lodged against Kruse show more differences than similarities. 

Wire fraud charges against Parnell were for emails he wrote, which overall had to do with forgery of the Certificates of Analysis (COA)  that PCA customers had requested. To his peanut broker brother Michael, he wrote” “please notice the lot numbers don’t match… if YOU want to change them, then please do…”

Parnell ordered the product shipped to customers that had tested positive for Salmonella. A shipment that had not tested within an acceptable microbiological range was approved, and the  Parnell email approved the shipment because he said the customer did not ask for a COA — or there was the email involving the use of peanut past that Parnell said: “tasted like shit.”

The emails for Counts 2 through 7 in the Kruse case are different.  He did not write or respond in any of the six “wire transmissions.”  A statement he made was reportedly quoted in two of the six.

Dated from Feb. 19, 2015, to April 7, 2015, five of the six emails are from Blue Bell sales employees and one is from a “quality” employee. All six were basically responding to various levels of customers about why Blue Bell ice cream was being removed from shelves.

Two February emails, one to a school district and the other to a restaurant chain, responded with a Kruse statement that ice cream was being removed over malfunctioning equipment. The prosecution says, “the actual reason” was certain Blue Bell products had tested positive for Listeria monocytogenes.

In two others, emails do not disclose the fact that the product was removed for Listeria contamination, according to the charges.

In one April email exchange, a sales employee did not disclose that when Blue Bell’s Broken Arrow, OK, production was shutdown the CDC had also recommended not eating ice cream made at the facility based on additional positive Listeria tests.

And in another email exchange, between a Blue Bell quality employee and an Arkansas retail chain, the government says conditions at the creamery were “misrepresented” and Listeria test results were not disclosed.

The bottom line?   Parnell’s fraud was clear to the jury from the get-go.  The Blue Bell emails might not say that to a jury.

April 7 was the last date on the six emails that carry a wire fraud count.  Here’s what Food Safety News was reporting that is contemporaneous around those dates.

This is also about the time that the federal Centers for Disease Control and Prevention (CDC) began calling Blue Bell “a complex multistate outbreak investigation of listeriosis occurring over several years.” It was where whole genome sequencing (WGS) for one of the first times is used to pull up pulsed-field gel electrophoresis (PFGE) DNA fingerprints from history. 

The South Carolina Department of Health and Environmental Control first isolated Listeria from Blue Bell brand single-serving ice cream produced in Brenham, TX, in February 2015. Whole genome sequencing or WGS linked the Listeria to multiple strains that infected ten people from 2010 to 2014 in four states Arizona 1; Kansas 5, Oklahoma 1; and Texas 3.   

As the fast-moving investigation carried into March, Kansas health officials were able to determine that all five who were sickened in that state were hospitalized for different and unrelated problems “before developing invasive listeriosis.” In other words, their infections were likely acquired in the Kansas hospital. And four of five had PFSE patterns consistent with the ice cream tests in Texas and South Carolina. Three died.

• On March 13, Blue Bell announced removing its “Scoops” ice cream product and others made on the same production line at Brenham, TX, and shutting down that production line.
• On March 22, Kansas reports finding Listeria in previously unopened single-serve Blue Bell brand chocolate ice cream collected from the Kansas hospital. It was produced at Blue Bell in Broken Arrow, OK, and matches previous tests.
• On March 23, Bell Blue announces recall of the 3-ounce ice cream cups produced at Broken Arrow, OK.
•  On April 3, 2015, Blue Bell Creameries voluntarily suspended operations at its Broken Arrow plant to thoroughly inspect the facility due to a 3-ounce institutional/food service chocolate cup that tested positive for Listeria monocytogenes and was immediately withdrawn from all outlets. That product was only available to Blue Bell’s foodservice and institutional accounts and was recalled along with 3-ounce vanilla and strawberry institutional/food service cups. 
• On April 4, 2015, out of an abundance of caution, Blue Bell began working with retail outlets to remove all products produced in Broken Arrow from their service area. These products are identified with a code date ending in O, P, Q, R, S, or T located on the bottom of the carton, and they are a part of the voluntary market withdrawal. 
• On April 7, 2015, the U.S. Food and Drug Administration notified Blue Bell that the Banana Pudding Ice Cream pint tested positive for Listeria monocytogenes. This pint was produced in the Broken Arrow plant on Feb. 12, 2015. Subsequently, Blue Bell is recalling all products made on that one particular production line from Feb. 12, 2015, to March 27, 2015. These products were produced on that same line and have a code date ending in either S or T. Recalled products produced in Oklahoma are identified by the code date on the bottom of the carton. 
• On April 8, 2015, CDC reported that whole-genome sequencing (WGS) confirmed that three of the four isolates from people in Texas were nearly identical to Listeria strains isolated from product produced by Blue Bell in Oklahoma. 
• On April 20, 2015, Blue Bell voluntarily recalled all products on the market made at any of its facilities including ice cream, frozen yogurt, sherbet, and frozen snacks. The complete shutdown came after Chocolate Chip Cookie 

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