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Letter From the Editor: The New Normal

Opinion

Not so long ago, errant food industry managers and executives did not have to worry about going to jail. But they do now.

The government once did not have any intentions, plans or strategies for obtaining convictions of food industry managers and executives. But they do now.

Before 2010, a corporation with contaminated food that sickened and killed people might escape criminal review entirely. That day is over, as evidenced by the criminal investigations now underway involving Blue Bell, Chipotle and Dole.

Before 2010, deadly outbreaks, such as those involving Bil Mar and Odwalla, occasionally ended with agreements for the company to enter a guilty plea to a misdemeanor and contribute to food safety research at some university. The days of those deals are long gone.

justice_406x250That era ended in 2010. In the years since, federal government attorneys have successfully prosecuted a bunch of criminal cases with food industry managers and executives as the targets. More are going to follow.

Earlier this month in Chicago, during the closing session of this year’s Food Safety Summit, the emerging role of the U.S. Department of Justice in foodborne illness outbreaks was one of the “hot topics.”

Jeffrey Steger, assistant director of DOJ’s Consumer Protection Branch, outlined what’s being called “Human Illness Standard.” It suggests that whenever a food product becomes associated with an outbreak of foodborne illnesses, it will trigger a federal criminal investigation of the company.

Shawn Stevens, principal of Food Industry Counsel LLC, also spoke at the closing session and later reacted to Steger in his Meatingplace column.

”Notably, DOJ can bring misdemeanor charges which carry up to a year in prison even if the food company has no knowledge it was producing contaminated products,” Stevens wrote.

Stevens is referring to the criminal misdemeanor prosecutions of individual “responsible corporate officials.” It is the kind of prosecution that was not brought against food industry executives prior to 2010, when then-FDA Commissioner Margaret Hamburg changed the policy.

Since then, criminal cases involving such well-known industry names as Jensen, Parnell, DeCoster and others have been successfully prosecuted by government attorneys representing FDA and USDA. Food Safety News has reported on every indictment, plea, motion, conviction, sentencing and notices of appeal for these post-2010 cases.

As a result of the successes the DOJ attorneys have had in these cases, it’s fair to say that these criminal prosecutions of food industry managers and executives who poison their customers represent the “new normal.” After every time the trial courts do their work, it is also normal when some issues are left to be decided by the appeals courts. Those issues would mix up the stew.

Here are the ones we are following:

  •  “Jack” and Peter DeCoster each pleaded guilty to one misdemeanor of allowing adulterated food to reach the market, but they then appealed their sentences. Their attorney, a former acting Attorney General of the United States, argues that jail time cannot be part of the sentence for one of these “strict liability” misdemeanors. And a “who’s who” of private sector organizations are backing the DeCosters with amicus briefs. The case has also become part of the narrative of the sentence reform movement. A three-judge appeals panel from the 8th Circuit heard oral arguments in the case on March 17. If they win, the DeCosters will not have to serve three-month jail sentences imposed on them by the trial court judge. The 8th Circuit ruling could be released at any time.
  • Stewart and Michael Parnell, along with Mary Wilkerson — all three associated with the Peanut Corporation of America — have appealed both their convictions and sentences to the 11th Circuit in Atlanta. In mid-summer, their appeal briefs will be filed, and one area likely to receive a lot of attention is how business reports are handled at the trial court level. The sampling and testing for Salmonella that was done for PCA by outside laboratories were found to be “business records” by the trial judge, not allowing defense attorneys to cross-examine those who produced the records, like lab technicians.
  • Also on appeal to the 8th Circuit is part of the Midamar Corp. convictions over a question of jurisdiction. Attorneys for Midamar argue that the charges brought against the company in U.S. District Court for Northern Iowa should have been brought instead to the Secretary of Agriculture, who had already disciplined the company for activity that brought the charges. Midamar was charged for obtaining beef from a plant not approved for export and then shipping it to where it was not supposed to go. USDA had earlier withdrawn inspection services, imposed corrections, and then restored inspection services for the same conduct that the company was later charged for in district court.

 

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