Fear the DOJ? USDA Criminal Actions Report Carries Caution Counsel For All
Updated: Nov 22, 2018
Over the last few weeks, our TAG newsletters have focused a lot on foodborne illness outbreaks, recalls, and their impacts on public health and the industry segments in which they occur. We’ve included a lot of discussion on FDA-regulated foods. What we haven’t really discussed is the potentially personal impact of a facility issue on its executives – whether or not the issue results in an outbreak, recall, or illness. But a recent enforcement report – from USDA this time – has brought to the forefront just such potential.
The Quarterly Enforcement Report of USDA’s Food Safety and Inspection Service (FSIS) often lists “none” under criminal actions, but the most recent report (Apr 1-Jun 30, 2018) includes two criminal action situations FSIS has taken to federal court:
Victor H. Gonzalez, president of El Milagro Nursery in Florida, was charged and pled guilty to the felony count for knowingly slaughtering and handling livestock inhumanely. Sentencing is pending. According to an FSN article, Gonzalez could get up to three years in prison, $250,000 in fines, and one year of probation for animal abuse, but the U.S. attorney has agreed to support a sentence less than that in the guidelines.
Randal Hamby, a corporate official of Amigos Meat Distributor in Georgia, was indicted, but pled not guilty, to charges of conspiracy, intentionally causing adulteration and misbranding of poultry products, and forging and using without authorization, an official device and mark. Hamby and an unnamed co-conspirator, the FSN article says, allegedly “devised a scheme to repackage, relabel and sell old, damaged and off-conditioned poultry products so that the products would not have to be destroyed.” Knowing that this is illegal, Hamby is accused of seeking a “technology specialist” to create, manufacture, and print fraudulent labels that included the USDA mark of inspection.
Executives of FDA-regulated facilities also have faced criminal counts. Who can forget the peanut contamination of 2009 for which two officials of the Peanut Corporation of America (PCA) were sentenced to prison for their roles in a conspiracy to defraud customers by shipping Salmonella-positive peanut products and falsifying microbiological test results. Less publicized was the conviction and imprisonment of an energy-drink company owner and his wife for leading a conspiracy concerning the illegal relabeling, repackaging, and eventual counterfeiting of the liquid dietary supplement 5-Hour Energy. But the case was actually one of the largest domestic food counterfeiting cases prosecuted by the U.S. Department of Justice (DOJ). The owner was sentenced to 86 months in federal prison; his wife was sentenced to 26 months' prison.
While all the above cases were based on alleged intent and knowledge of wrongdoing, the 2011 Jensen Farms caseon the Listeria-contaminated cantaloupe outbreak shows that executives can be charged even when a contamination is not intentional. Additionally, criminal or civil charges can result even if the executive is not personally involved in a criminal action, and even if they had no knowledge of it. The District of Colorado DOJ release on the case states, “The defendants were aware that their cantaloupes could be contaminated with harmful bacteria if not sufficiently washed. The (equipment’s) chlorine spray, if used, would have reduced the risk of microbial contamination of the fruit.” But, despite pleading guilty to the charge of introducing adulterated food into interstate commerce, the Jensens were said to have thought their cleaning system was effective and did attempt a recall after the outbreak began.
Thus, what the case showed was that if charged with introducing adulterated food into interstate commerce, intent is not a factor of guilt. To take it to its most literal extent, virtually any company – or executive thereof – that has had to recall adulterated food from the market could be held criminally accountable. While that is less feasible than literal, it should be taken to heart by every person with a hands-on, management, or executive position of a food company. And, as the Gonzalez case shows, criminal action can extend to other aspects of the process that don’t result in contamination, i.e., inhumane handling of animals.
When the Trump Administration took office, some wondered if the DOJ would back off on food safety-related charges and activity. All the indications are that they have not done that. In fact, I would say the rate of DOJ actions has not waivered one bit!
Although this is something to be taken seriously, the purpose of this newsletter is not simply to put the Fear of DOJ in you. Rather it is to make you think outside of the office in which you sit, the specific responsibilities you hold, to consider those of anyone within your company, both above and below. For example, if you are managing food safety issues in your company in any way, do you really know what is happening on your watch? Lack of knowledge is not an excuse in DOJ’s eyes. Each case above is an example of what not to do – where not to end up! – and to make sure your employees don’t either. Criminal charges are being filed, executives are being imprisoned. Don’t let it happen to you.
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