After once again spending time with victims of yet another outbreak of foodborne disease who  are advocating for justice for themselves and family members, I thought again why prosecutors seem so reluctant to charge those who poison us with food.  As I have said far too often, in nearly two decades of representing families impacted in foodborne outbreaks large and small, criminal prosecutions of those who poison us are rare.  It is not because the laws do not exist.

Congress passed the Federal Food, Drug, and Cosmetic Act in 1938 in reaction to growing public safety demands.  The primary goal of the Act was to protect the health and safety of the public by preventing deleterious, adulterated or misbranded articles from entering interstate commerce.  Under section 402(a)(4) of the Act, a food product is deemed “adulterated” if the food was “prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health.” A food product is also considered “adulterated” if it bears or contains any poisonous or deleterious substance, which may render it injurious to health.  The 1938 Act, and the recently signed Food Safety Modernization Act, stand today as the primary means by which the federal government enforces food safety standards.

Chapter III of the Act addresses prohibited acts, subjecting violators to both civil and criminal liability. Provisions for criminal sanctions are clear:

Felony violations include adulterating or misbranding a food, drug, or device, and putting an adulterated or misbranded food, drug, or device into interstate commerce.  Any person who commits a prohibited act violates the FDCA.  A person committing a prohibited act “with the intent to defraud or mislead” is guilty of a felony punishable by not more than three years or fined not more than $10,000 or both.

A misdemeanor conviction under the FDCA, unlike a felony conviction, does not require proof of fraudulent intent, or even of knowing or willful conduct.  Rather, a person may be convicted if he or she held a position of responsibility or authority in a firm such that the person could have prevented the violation.  Convictions under the misdemeanor provisions are punishable by not more than one year or fined not more than $1,000, or both.

The legal jargon aside, if you are a producer of food and knowingly or not sell adulterated food, you can (and should) face fines and jail time.

  • Annie O’Connor

    Where does this leave genetically modified, irradiated, cancer-causing nitrites and other additives, cloned meat … ad nauseum ‘foods’ with their proven (and carelessly promulgated to the public w/o thorough investigation) deleterious effects on countless uninformed victims? Who will even dare to point out that the ’emperor wears no clothes’, let alone merely err on the side of caution and vigorously examine these approaches to ‘feeding the nation’ for potential harm?

  • We agree wholeheartedly with Annie’s comment (above), and, in fact, she took the words out of our mouths. The FDCA’s definition of “adulterated” is entirely too narrow and ineffective in that it does not address the very real and reasonable concerns of our day relative to what has come to be known as Frankenfoods.

  • Ann Quinn, consumer

    Arsenic, cadmium, and lead, among other toxic metals, found in commercial pet foods, journal: Spectroscopy, Jan and Feb 2011:
    No food poisoning crime is commensurately punished apparently,
    and it’s so wrong that consumer food protection is so inadequate.

  • Justice Plus

    Mr. Marler,
    This is a disturbing post. Those jeans look like mine. The hands even look a little like mine. I can almost feel the cold, sharp, steel of the cuffs.(The picture is on Marler Blog)I was on the way to bed with my wife but now I can’t sleep so I thought I might as well write to you.
    I am a farmer. A “producer of food” as you would say it. A small, local, direct-marketing, food producer to be exact. Producing safe, health-giving foods for our customers is the top priority of our family. We do need to make some money someday, but our customer’s safety and satisfaction comes before that.
    I have a lot of respect for you and your team’s expertise in food-borne illness research. For that reason, I read Marler Blog, Food Poison Journal, and Food Safety News every day. I’m grateful for all that I have learned from you and other writers and I’m sure there is still a lot to learn.
    But this post disturbs me. Your stated position seems so unjust. It seems so harsh and so unmerciful especially coming from a man who otherwise appears compassionate and a champion of justice. I wonder if you have thought through the implications of what your position would mean to farmers like our family.
    We do everything in our power to grow and package our food safely. We abide by all the state and federal rules that apply to our operation which includes regular testing for the most common pathogens. Our farm and food producing, handling and packaging areas are fully inspected and licensed properly.
    We have a good relationship with our local state inspectors and even the occasional federal inspectors. An FDA inspector was on our farm just last week and we got along swell. He told us all was in order and gave us his best wishes. Like a lot of small farmers, we have some things we wish were different with the regulations and regulators, but we choose to work with them instead of against them. We treat them with respect and it is reciprocated. We like that.
    And yet there is even more to our food safety commitment than what any regulation would ever ask. My wife and I feed ourselves and our children from our farm every day. My friend and partner on the farm also feeds his family from the farm. We are like the king’s tasters. We put ourselves and our families on the front line. If there is anything wrong with the food that all of our testing and the regulators have failed to catch we will be the first to know. With my partner’s family and ours combined we have 16 people; mothers, dads, children and babies doing real-life-24/7 -testing of all of our foods. (Just try to make that a requirement in S 510! 🙂
    But here is my dilemma. I’m not God. I’m not in control of all things. We do our level best with all integrity, but microbes are everywhere… doing battle with them is tricky and not at all certain, so it is always possible a stray pathogen may find its way into our food. It happens to all foods as you should know.
    And yet you insist that in all of this there is no indemnity. (This post is not the first time I have heard you use this argument) No matter how hard we have tried, no matter how much we as a family go over and beyond what is required of us by regulation, no matter how much we care, no matter how innocent and law abiding we are, if we would have an outbreak, you want me arrested and thrown in jail as a common criminal on the charge of “poisoning” the food. I quote: “…if you are a producer of food and knowingly or not sell adulterated food, you can (and should) face fines and jail time.” I further assume that you also would also see me as a sitting duck for a crushing law suit to boot…to better serve justice.
    Please tell me this is not so Mr. Marler. I think better of you than that. It is true that the FDCA of 1938 gives this provision, but tell me that your sense of justice rises above the cold hard law. Tell me that you have enough ethics and are man enough to acknowledge that when a “producer of food” exerts certain extraordinary, high integrity efforts in food safety that there does come a point when he becomes innocent of wrong doing and therefore receives indemnity from both prosecution and law suit even if someone would fall ill from consuming the food from his farm.
    And before you retreat behind “the law is the law” and “there is no precedent for this type of indemnity”, please remember that history makes heroes of pioneer leaders with enough vision, ethics, integrity and moral courage to rise above unjust laws of their time. Think about it.
    All the best of food and blessings,
    Justice Plus

  • @Justice Plus. Thank you for your thoughtful response. I had the same ideas and concerns when reading Mr. Marler’s comments.
    Mr. Marler, it seems that if you have your way, small farmers like Justice Plus will be in jail, while the large agribusinesses (who can easily sustain the fines and jail time) will be left to produce our food. These are the businesses who produce products like “chicken fingers” made from “reclaimed chicken” (carcass and bone treated with a variety of chemicals to make it look like chicken) and are completely sterile.
    Yes, I too read and respect what you do. As a food scientist I am well versed in the many aspects of food manufacturing and production: FDA regulations, HACCP plans, etc. However, I was deeply, deeply disturbed by the extreme position presented in this article.