Are We Entering an Era of Further Legal Repercussions with Fewer Appeal Options?
Updated: Nov 22, 2018
Legal repercussions of food adulteration have always been a concern of the industry, but some recent actions of the federal government indicate that we may be entering an era of further repercussions and fewer appeal options.
TAG's discussion of the increased activity of the Department of Justice (DOJ) in the food industry is nothing new. (See What Does DOJ’s Increased Focus on Food Safety Mean?, How Serious is the Department of Justice?, and Is Your Food Safety Program Protecting Your Business?) But, what is new, is that, as we intimated in last week’s newsletter, we are seeing that the role the DOJ is playing in the food safety space is still very much alive and well under the Trump Administration. This is evidenced by the proposed budget allocation for DOJ of $27.7 billion primarily for “law enforcement, public safety and immigration enforcement programs and activities.”
The potential of legal repercussions is furthered when you combine these increased DOJ resources with FDA’s increased environmental sampling and whole genome sequencing tracing abilities. Then add the recent Supreme Court action which halted in its tracks the DeCosters’ appeal of their indictments in the egg Salmonella outbreak of 2010, and we are seeing that industry may have fewer options for appealing DOJ penalties.
To provide a bit of background on the DeCosters: Having failed in an attempt to have a U.S. Court of Appeals overturn the sentences imposed by a U.S. District Court, the father-and-son officers of Quality Egg LLC petitioned the U.S. Supreme Court to review their sentences. Although they had struck a plea agreement which imposed personal and corporate fines, they had not agreed to the jail time imposed by the court judge. Thus, their appeal, as explained by FSN, “sought to limit when a ‘responsible corporate officer’ could be imprisoned for ‘strict supervisory liability.’ In such instances, although an employee commits the offense, the ‘responsible corporate official’ can also go to jail for it.” In late May, the Supreme Court denied the appeal, ending their options.
While all this is likely to make our opening terminology of industry “concern” seem to be a rather mild word to describe the sleepless nights associated with unintentional adulteration and its potential legal repercussions, the purpose of this newsletter is not to further the fear in the hearts of our readers. Rather it is to ensure you are aware of the environment in which you are operating today and are taking steps to keep your food safe – with or without federal regulation.
We find it highly unlikely that the Trump Administration’s focus on reducing and eliminating “burdensome” regulationwill impact any significant food safety rules, with maybe the exception of the new labeling requirements. But, even if that tide were to turn toward the food industry, even if some significant edict would somehow make FSMA unenforceable and debunk compliance, we would sincerely hope that food facilities would continue moving forward with risk-based preventive controls, environmental monitoring, and all other FSMA-based enhancements to your food safety programs.
While consumer protection should always be the primary purpose of a facility’s food safety procedures and programs, those same actions will serve to protect your business, your brand -- and your freedom. Although mistakes can happen, it is the known and ignored issues and actions that bring about executive downfall – and jail time – even if, as declared in the DeCoster case, you, personally, were unaware of the issue or action. As an executive or manager, it is your responsibility to be aware, and legal precedence has been set which makes that responsibility not simply an ethical obligation but a legal liability.
There is a reason that "food safety culture" has become an industry buzz-phrase. If you commit your top management to food safety and truly drill that culture down and across your entire organization, you will sleep better at night because you will have little reason to fear the furthered repercussions or concern yourself with fewer appeal options.
About The Acheson Group (TAG)
Led by Former FDA Associate Commissioner for Foods Dr. David Acheson, TAG is a food safety consulting group that provides guidance and expertise worldwide for companies throughout the food supply chain. With in-depth industry knowledge combined with real-world experience, TAG's team of food safety experts help companies more effectively mitigate risk, improve operational efficiencies, and ensure regulatory and standards compliance. Learn more at: www.AchesonGroup.com