Mock Food Safety Trials - Tools to Reduce Your Company's Risk

Conducting a realistic two hour mock criminal foodborne illness outbreak trial can help food companies identify and eliminate food safety risk and exposure long before it occurs. When looking for additional ways to decrease the likelihood of a recall or an insured event, the mock trial, based upon a fictional scenario which mirrors a company’s own products and risk profile, is one of the most effective tools available.

When Congress passed the Food Safety Modernization Act (FSMA) in 2011, it directed FDA to put an end to recalls. After the Act was signed into law, the agency worked tirelessly to draft the enabling regulations that changed the landscape of food safety in the U.S. forever.

FDA, however, also understood that, for FSMA to be effective, the agency needed additional enforcement tools. Thus, in 2014, the agency partnered with DOJ, announcing that they would look at any situation where a food company shipped contaminated products for grounds to bring potential criminal charges.

In response, our law firm began conducting criminal mock trials on behalf of our clients. During these exercises, we focus on a mock Park Doctrine criminal trial where the company is accused by DOJ of not doing enough to prevent a recall or outbreak from occurring.

The elements for DOJ to obtain a conviction are simply that:

1. The defendant food company was aware of a condition that could lead to product contamination;
2. The defendant food company was in a position to eliminate the condition; and
3. The defendant food company failed to do so.

Our attorneys then play the role of the prosecution and defense lawyers, arguing why the company should, and should not, be held responsible. After hearing the evidence and arguments, company leadership is then asked to deliberate as the jurors.

Following the collection of the verdict, we use the opportunity to impart lessons on the leadership group that invariably gives them additional tools when making future important food safety decisions. Attendees have the opportunity to ask questions, discuss hypothetical scenarios, and develop a full understanding of how best to stay out of a recall scenario. These exercises can be completely confidential, allowing for freedom of discussion and inquiry, so companies can improve without fear of future reprisals. Company leadership also learns quickly that operating in a way that is normally regarded as routine, can, in fact, lead to significant exposure - incentivizing additional and immediate food safety investments.

This two-hour exercise has been incredible successful, and has had a net positive effect on internal food industry corporate decision making aimed at enhanced food safety, and preventing recalls and insured events.