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Letter From the Editor: About Criminal Prosecutions

Opinion

Food industry executives, listen up.

Barring any last-minute plea bargains, six of your brethren are going to jury trials soon on criminal charges for food-safety offenses. It would be best for you to pay attention now than to wait until after you find out how cold that fog over the central Pacific makes the bunks at the Lompoc federal correctional institution.

On the surface, it would seem that 76 counts of federal felony charges involving all sorts of fraud and criminal conspiracy brought against four Peanut Corporation of America executives should be more of a concern to you than six federal misdemeanor charges against the two brothers who owned Jensen Farms.

In neither of these cases is any food industry executive charged with murder or even manslaughter, but both of these prosecutions follow deadly outbreaks of foodborne illness that together killed 52 people and caused a miscarriage. Hundreds of others were sickened in the two outbreaks – probably thousands if unreported cases were included.

Enforcement of food safety law and regulations, at both the state and federal levels, is built on platforms of “progressive discipline.” USDA has long stepped through administrative, civil, and, ultimately, criminal enforcement to make the meat and poultry industries behave.

But some platforms don’t go as high as others.

At the U.S. Food and Drug Administration (FDA), there’s not been much in the way of criminal prosecution of food industry executives. This has been a pretty strange situation in that FDA regulates 80 percent of the food industry and has its very own Office of Criminal Investigations (OCI).

Only after peanut butter and paste from PCA sickened at least 700 and killed nine in late 2008 and early 2009 did FDA send up smoke signals that it might change its posture on criminal prosecutions. PCA was not only human tragedy, but it was also an economic disaster, resulting in the recall of nearly 4,000 products containing the butter or paste as an ingredient. Instead of a cheap commodity, those who got involved with PCA ended up with a piece of a $1-billion recall.

It left PCA’s many human and economic victims and Congress calling for more out of FDA than more warning letters.

In early 2010, FDA sent a letter to Congress stating that it might “increase” misdemeanor prosecutions of food industry executives and work on “strategic alignment” with the agency’s OCI.

By the time of this letter, which went to Sen. Charles Grassley, R-IA, we now know that the federal prosecution of PCA executives was entirely out of FDA’s hands. Instead, the FBI was off and running with the PCA investigation and was not stopping with “food cop” stuff.

Instead, with the Department of Justice’s Consumer Protection Branch, the FBI was putting together the kind of conspiracy and racketeering case against the PCA executives upon which the bureau’s bones have been made. It resulted in a stunning 76-count federal felony indictment of brothers Steward and Michael Parnell and two other PCA executives.

FDA is a bit player in that prosecution, which is scheduled for a jury trial in February.

But we now also know that the change FDA was promising back in 2010 did come to fruition in the agency’s investigation of the 2011 Listeria outbreak involving cantaloupe grown by Jensen Farms.

Eric and Ryan Jensen are charged with federal misdemeanors on the theory that they are the “responsible corporate officers” who are strictly liable because they did not prevent violations of the Food, Drug, and Cosmetic Act.

In other words, the Jensens did not have to intend to violate the FDC Act or even know about the specifics of the violation to be convicted for a misdemeanor. This legal theory stems from a 1975 Supreme Court decision in U.S. v. Park and called the “Park Doctrine” by attorneys.

In the 2010 letter, FDA said increased use of the federal misdemeanor prosecution required more information-sharing and strategic alignment with OCI and better “debarment and disqualification” procedures.

Based on the record, we can now conclude that this policy change has occurred. Indeed, this is the first time your humble editor has ever seen OCI mentioned in a food-safety investigation, which came in the U.S. District Attorney for Colorado’s announcement of the Jensen prosecution.

This was included in the official press release:

“U.S. consumers should demand the highest standards of food safety and integrity,” said Special Agent in Charge Patrick J. Holland of the FDA Office of Criminal Investigations, Kansas City Field Office. “The filing of criminal charges in this deadly outbreak sends the message that absolute care must be taken to ensure that deadly pathogens do not enter our food supply chain.”

Welcome to the food-safety fight, Agent Holland. It’s great to have the OCI on board!

Thus, for food industry executives, the lesson of the Jensen prosecution is that FDA has put something new in its enforcement tackle box – charges of criminal misdemeanors. This is not like having the FBI on your ass with felony charges of fraud and criminal conspiracy, and it should not keep you awake at night.

But this is also no small deal. Each misdemeanor count carries with it the potential for one year in a federal pen, like Lompoc, and up to $250,000 in fines. Now it warms up in the afternoon in Lompoc for some nice tennis weather at “Club Fed,” but it’s still a place that’s best to avoid.

However, you would be well-advised to have your company’s general counsel connect you with a reputable federal defense attorney just so you’re ready. Then, when the federal agents with badges and guns do end up on your doorstep, you can tell them whom to call.

© Food Safety News
  • Mike_Mychajlonka_PhD

    The importance of food safety testing has often been dismissed with the phrase: ” . . . you can’t test your way to safety.” What I assume is meant by that is that any testing program extensive enough to “guarantee” the safety of a product would also leave little or no product left to sell. However, if diligent and, more importantly, intelligent testing can keep the corner office folks out of the slammer, then perhaps it may be useful after all.

    • Oginikwe

      What I assume is meant by that is that any testing program extensive
      enough to “guarantee” the safety of a product would also leave little or
      no product left to sell.

      That has to be the scariest food thought of the year: that would mean that our food supply is toxic across the board and there is nothing to be done about it. That’s some kind of social Darwinism going on there.

      • Mike_Mychajlonka_PhD

        It doesn’t mean that at all. It’s just math. If a given company’s morning output is to make 10,000 packages of something and a dozen packages of those are tested and found to be fine, then one may calculate the probability that the other (untested) samples are OK. This process sometimes goes by the name of risk assessment. However, that does NOT mean that ALL of the untested samples are OK, just that the probability that they are can be calculated. Testing five times that many samples (i.e., 60) and finding that they are all safe will certainly provide a more precise risk assessment and increase the safety margin, but it will still not mean that every single remaining (but untested) product is safe. Increasing the sampling rate by another five fold and testing 300 samples and again finding that all are safe will again increase the precision of the risk assessment increase the safety margin. Still, the probability that some portion of remaining (untested) product may be contaminated can never go to zero. However, the cost of such extensive testing and the significant loss of product available for sale may be enough to wipe out that company’s expected profit for that morning’s work. I don’t know of anyone who goes into business to lose money. How scary that situation is depends upon what you want to mean by the word “guarantee.”