The Food Police Are Coming: DOJ And FDA Say Criminal Prosecution Of Food Companies Is A Priority

Posted in FDA & USDA Inspections

I was honored to give this year’s Keynote Address at the BRC’s Annual Food Safety Americas Conference in Tampa.  The topic of my speech this year was the FDA’s use of criminal charges and penalties against food industry executives, QA managers and food safety employees.   The message to industry … the Food Police are coming.

Indeed, the Department of Justice (“DOJ)” has made it public that it has partnered with FDA and adopted a policy of initiating criminal investigations against any company (or its employees) that sells a product that cause human illness.  Here is a link to the WEBSITE CONTAINING DOJ’s FOOD SAFETY POLICY. Click here for a .PDF COPY.

DOJ’s announcement comes as no surprise.  As a food safety attorney, I track FDA policy closely, and authored a White Paper which describes in great detail the partnership between FDA and DOJ, and the DOJ’s recent use of criminal sanctions as a punishment against companies that make people sick and a deterrent to compel food companies to comply with the Food Safety Modernization Act (“FSMA”).  (See FDA’s WAR ON PATHOGENS: Criminal Charges for Food Company Executives and Quality Assurance Managers).

In the DOJ’s remarks, Benjamin C. Mizer, Principal Deputy Assistant Attorney, stated that “one of the government’s highest obligations is to protect citizens when they cannot protect themselves.”  According to the agency, and the development of recent policy, FDA and DOJ view any human illness caused by a food product as a potential violation of the law.  “In deciding whether to use our civil or our criminal enforcement tools,” explained Mizer, “prosecutors [will] evaluate the nature and seriousness of the offense, the deterrent effect of the prosecution and the culpability of the individuals or entities involved.”

But, according to FDA and DOJ, a food company executive, manager or employee can be charged with a crime even if they didn’t know they were selling product that was contaminated or making people sick.  According to Mizer, “Congress has made the prohibition on introducing adulterated food into interstate commerce a strict liability offense, meaning that a company or individual violates the law and can face misdemeanor charges whether or not it intended to distribute adulterated food.”  And, “make no mistake,” explained Mizer, misdemeanor violations can mean serious penalties.  Indeed, a single misdemeanor violation can equate to a $250,000 fine and a year in prison.

In the statement, Mizer also talked about the criminal charges recently brought by FDA and DOJ against numerous different food companies, including Peanut Corporation of American and Jensen Bros.:

The Justice Department’s focus on food safety and our recent successful prosecutions … have accomplished a great deal.  The cases that we bring help create conditions that ensure the safety of the food supply.  They create incentives for good behavior and they deter misconduct.  They empower those within an organization who see unsafe practices to speak out.  They help to educate the industry and to support the great work that the FDA, the USDA and others are doing.  In short, aggressive enforcement of the FDCA and other food safety laws helps to ensure that making safe food is not only the best ethical and moral decision, but also the best business decision.

Notable, in none of the cases, with the exception of Peanut Corporation of America, did any of the companies (or company employees) know that they were selling contaminated food.

Mizer concluded his remarks by stating that FDA and DOJ “are committed to continuing to vigorously prosecute food safety cases.”  Moving forward, FDA and DOJ are committed to aggressively using criminal penalties as a tool to ensure “that Americans can have the utmost confidence in the safety of the food that they eat.”

Based upon what I have witnessed happening to my clients and others over the last 18 months, and the new statements issued by DOJ, I predict that highly-publicized criminal investigations and prosecutions against the food industry will begin to intensify.