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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Food Safety News Publisher’s Platform – Private AG

Tune into Food Safety News Sunday morning and read the full story.

Everyone seems to hate government now days. From being afraid of the FDA “food police” trying to steal your seeds, to trying to privatize social security, government is perceived as both overbearing and incompetent (at the same time). Some want to gut the EPA and abolish the Department of Education. Some see the “private sector” as the panacea of all our ills – that somehow an unregulated, or nearly so, economy will magically produced good wage jobs, a clean environment and smart, well mannered children. Be that as it may, I have not seen anyone yet suggest that we privatize the office of the Attorney General, in full or in part. Might I be so bold as to suggest at least a small subcontract to “Marler Clark, Food Safety Prosecutors.”? I would be willing to put people in jail for poisoning people, and I would do it on the cheap – perhaps for the fun of it. Here is how it would work.

In 1938 Congress passed the Federal Food, Drug, and Cosmetic Act 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.

Similar laws deal with the meat side of the equation over at USDA/FSIS.

So, in the near two decades of being involved in every major foodborne illness outbreak in the United States, I have seen more than a few outbreaks that, if I had the authority, I would have prosecuted, some as felonies and some as misdemeanors. Either way, I would have sought fines and jail time for the executives responsible for food safety.

Some of the causes of the outbreaks I will cite on Sunday, could well have been considered for felony prosecution. All, however, could have been prosecuted as misdemeanors. Under either scenario a CEO may well have faced both a fine and jail time. Consider for a moment how a CEO might well think twice about pushing food safety to the side ahead of increased sales and profits. My bet is that if I had prosecuted some of the above cases, as the crimes they were many of the others would never have happened. CEO’s now might risk poisoning people because an insurance company will pick up the tab, but they would not risk personal fines and jail time. I think it is time to give it a shot. Attorney General Holder, my number is 1-206-346-1890.

  • Larry and Karen Andrew

    Bill Marler, Assistant Attorney General for Food Safety Prosecutions…has a nice ring to it…..Stewart Parnell at the top of the list…felony charges…

  • Mrs. Mudder

    Mrs. Mudder August 22, 2011
    Bill, How do I help you get the people in power to get this food poisoning
    problem under control? Our great nation is caught in a web of stupidity that
    needs a GREAT over-haul of cleanliness, if not jail-time.
    I am so very glad you are in the front seat, tell me how to help!
    Thanks

  • http://www.IFLR.msu.edu Neal

    Bill,
    Why not amend the food law to allow private attorney generals? Especially if you don’t think government is as efficient as private industry, then partially privatize it. I proposed something along those lines in 2003: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=785916&