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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

If we are not going to inspect people who poison us, let’s just throw them in jail

Even the folks who fought against S. 510, have to admit that the FDA does not have the resources to inspect domestic food production less alone imports for pathogens that can kill you.

Houston Criminal Lawyer admires the new Jail Czar.jpgPerhaps Senator Patrick Leahy (D-VT), has an idea. He has introduced to bills, S. 3767 (Food Safety Accountability Act) and S. 3669 (Food Safety Enforcement Act of 2010). S. 3767 would amend Title 18 of the U.S. Code (Chapter 47 – Fraud and False Statements) to add a new section – § 1041 Misbranded and adulterated food – making it unlawful for any person to knowingly: “(1) introduce or deliver for introduction into interstate commerce any food that is adulterated or misbranded; or (2) adulterate or misbrand any food in interstate commerce.” A violation of proposed § 1041 would carry with it a fine and/or imprisonment for not more than 10 years. S. 3669 would amend the FDC Act to impose the same criminal penalties for persons who knowingly contaminate the food supply.

Wait a minute, we have not even prosecuted Stewart Parnell and he killed 9 and sickened 700 in a Salmonella Outbreak in 2009.

Full texts of Acts below:

S. 3669 – Food Safety Enforcement Act of 2010

To increase criminal penalties for certain knowing violations relating to food that is misbranded or adulterated. 

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Food Safety Enforcement Act of 2010’.

SEC. 2. CRIMINAL PENALTIES.

Section 303(a) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 333(a)) is amended –

(1) in paragraph (1), by striking ‘Any’ and inserting ‘Except as provided in paragraph (2) or (3), any’;

(2) in paragraph (2), by striking ‘Notwithstanding the provisions of paragraph (1) of this section, if’ and inserting ‘If’; and

(3) by adding at the end the following:

‘(3) Any person who knowingly violates subsection (a), (b), (c), (k), or (v) of section 301 with respect to any food that is misbranded or adulterated shall be fined under title 18, United States Code, imprisoned for not more than 10 years, or both.’.

S. 3767 – Food Safety Accountability Act

To establish appropriate criminal penalties for certain knowing violations relating to food that is misbranded or adulterated.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Food Safety Accountability Act of 2010’’.

SEC. 2. CRIMINAL PENALTIES.

(a) IN GENERAL.—Chapter 47 of title 18, United States Code, is amended by adding at the end the following:

‘‘§ 1041. Misbranded and adulterated food

‘‘(a) IN GENERAL.—It shall be unlawful for any person to knowingly—

‘‘(1) introduce or deliver for introduction into interstate commerce any food that is adulterated or misbranded; or

‘‘(2) adulterate or misbrand any food in inter- state commerce.

‘‘(b) PENALTY.—Any person who violates subsection (a) shall be fined under this title, imprisoned for not more than 10 years, or both.’’

(b) TECHNICAL AND CONFORMING AMENDMENT.— The table of sections for chapter 47 of title 18, United States Code, is amended by adding at the end the following: ‘‘1041. Misbranded and adulterated food.’’

  • John Munsell

    I must agree with Mr. Marler’s contention that we must agree that FDA lacks the resources to inspect domestic and imported food. But, FDA must proactively embrace an aggressive inspection stance, and I’m convinced they could care less……..just like their cohorts at FSIS. These two paragons of public health agencies are primarily focused on agency comfort, which is accomplished via non-inspection.
    Regarding the intentional shipment of contaminated product into commerce: subsequent to ConAgra’s recall of 19.1 million lbs of e.coli-contaminated meat, OIG investigated records at ConAgra’s monstrous plant in Greeley, CO. One verbatim statement from its investigative report one year later was “Data was available to both ConAgra and USDA in the period prior to the recall that indicated that E.coli contamination was becoming a CONTINUOUS problem at ConAgra” End quote. A report in the Greeley CO Tribune stated that in the 100 days prior to the recall, ConAgra’s in-house testing revealed E.coli in meat on 34 out of those 100 days. Armed with such ongoing evidence of systemic contamination at ConAgra, what corrective actions did ConAgra implement, and what kind of enforcement actions did FSIS mandate? Well, uh, nothing. This is the beauty of HACCP’s deregulation of the food industry, with full endorsement of FSIS and FDA, neither of which possess the courage to challenge the food industry’s behemoths with meaningful enforcement actions.
    I suggest that if Senatory Leahy’s bills had been passed into law prior to ConAgra’s recall, ConAgra management and a full complement of FSIS officials would still be languishing in prison. Only then would this nation have the audacity to question the efficacy of our goverment’s existing “Hands Off” food non-inspection policies.
    Better get used to outbreaks and recalls, because FDA & FSIS are perfectly comfortable assuming a recumbent stance.
    John Munsell

  • Carl R. Hansen, Jr., M.D.

    Consideration needs to be given to application of Homeland Security Presidential Directive 9: Defense of United States Agriculture and Food (http://www.dhs.gov/xabout/laws/gc_1217449547663.shtm#1)

    It “establishes a national policy to defend the agriculture and food system against terrorist attacks, major disasters, and other emergencies.”

    Terrorist activities can originate both internally and externally. Historically, some of the worst ones came from internal threats to the public good and legitimate operation of local, county, state and federal government.

    Presidents Clinton, Bush and Obama have seen fit to extend his reach internationally in cases where the hazard is less than what we have experienced with food and consumer products.

    It would appear that there are legitimate channels to deal with these threats to the public welfare, health and national security within the limits of the rule of law and the U.S. Constitution under this and other directives.

    Remember, we have been at war and domestic food producers have endangered what Clausewitz and Sun Tzu have identified as key to any military strategy – the people.

    Salmonella and other pathogenic organisms that contaminate food or water have been strategic game changers for centuries (e.g, The Battle of Red Cliffs in China – 208/209 AD).