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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

So, if you sell tainted food, can you (should you?) spend time in jail and/or be fined?

jail-pension-handcuff-money.jpgI got this helpful email over the weekend:

Hey Bill, Section 303, the fine provisions of the Food, Drug, and Cosmetic (FD&C) Act, 21 U.S.C. section 333, have been superseded by 18 U.S.C. section 3571, so that the maximum criminal fines for a misdemeanor conviction of the FD&C Act are $250,000 (misdemeanor for individual resulting in death), $100,000 (misdemeanor for individual not resulting in death), $500,000 (misdemeanor for organization resulting in death), or $200,000 (misdemeanor for organization not resulting in death).

I had the fines of by a few digits in an earlier post, but the time in jail and the standards correct:

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.

Chalk that up to inflation perhaps? So, where does the law stand now, and should sellers of tainted food be worried? Lets see:

21 USCS § 331. Prohibited acts.  The following acts and the causing thereof are hereby prohibited:

(a) The introduction or delivery for introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded.

(b) The adulteration or misbranding of any food, drug, device, tobacco product, or cosmetic in interstate commerce.

(c) The receipt in interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise.

The penalties outlined in the original Food Drug and Cosmetic Act (FDCA), in Title 21, have in fact been superseded by the general criminal penalties contained in Title 18. Regarding prison time, the FDCA, 21 USCS § 333, still provides for a maximum prison term of one year or less, and a maximum of three years or less for duplicate or intentional violations. 18 USCS § 3559 defines a maximum term of one year or less as a Class A misdemeanor; a maximum of three years or less would fall within the category of a Class E felony. 18 USCS § 3571. Sets out the range of fines:

(1) for a felony, not more than $250,000;

(2) for a misdemeanor resulting in death, not more than $250,000;

(3) for a Class A misdemeanor that does not result in death, not more than $100,000;

(4) for a Class B or C misdemeanor that does not result in death, not more than $5,000.

So, same amount of time in jail and bigger fines – I like that.

  • Paul F Schwarz

    The families of the Jensen Farms Listeria outbreak can only hope that justice prevails!
    Paul A Schwarz
    December 18, 2011
    Section 51 Row 1 Grave 3 Ft Leavenworth/Leavenworth National Cemetery

  • Art Davis

    “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.”
    Might this be interpreted to potentially result in a misdemeanor conviction of management personnel of a produce packer / shipper when their product is found by FDA random market sampling to be contaminated (i.e. adulterated) by any of the commonly found pathogens? This requires an interesting call on the question of strict liability and the well known current inability for produce packers to quantitatively detect and / or remove pathogens from fresh produce.

  • Jeff Almer

    My memory on this is somewhat hazy, but I believe the increased penalties are a result of Senator Leahy’s bill passing a few months ago.
    Either way, if the food producer is guilty as sin; such as Salmonella Stewie Parnell; the feds should think about enforcing a penalty or two. How about even 9 counts? One for each of the 9 deaths PCA’s lousy product caused.
    I don’t believe the new legislation is in effect for Parnell, but it should be for Jensen’s Farms cantaloupe poison.

  • Gabrielle Meunier

    This is a step in the right direction. However, jail time needs to be more commensurate with the crime as well. Is the crime of causing death with intent/knowledge only worth up to 3 years? Or is this wording even superseded so that it is now just punishable if it is duplicate or intentional? Nonetheless Senator Leahy had introduced a Bill that was to change the prison time to, I believe, 20 years. . . Time to check in with the good Senator’s office on the whereabouts of that Bill!

    Furthermore, what is on the books is absolutely worthless, if it is not enforced by the US Justice Dept . . .

  • Donna Wells Lloyd

    Just about a year ago, Clarence Wells had a breakfast which included a cantaloupe which was grown on the farm of the Jensen Brothers. After suffering a surprise and debilitating illness in late August, he passed away on August 31. His ceremony is planned for early September at Arlington National Cemetery. We miss him every day and are inflamed with the dismissive attitude displayed by the Jensen “boys” in this tragedy. They are still blaming nature and God for their greed in using old and inappropriate equipment and running a filthy packing house. There are more than 130 families in despair and worrying about family members due to their cavalier attitude. In my opinion, they should face legal penalties.

  • Bill: you know me well enough to correctly assume that I agree that companies which knowingly & recurringly ship unsafe food into commerce should also ship payroll checks to their officials at their prison address. Your posts have conclusively shown how some individuals in the food industry qualify………over and over again. My concern is how such legislation would impact downstream entities, such as me, Costco, Safeway, and small local further processors who unwittingly purchase USDA-inspected AND PASSED meat which is laced with invisible pathogens. Such food processors are almost always the destination, but NOT THE SOURCE of the pathogens. Without fully cooking or irradiating the meat, these downstream further processors merely pass forword the previously contaminated meat. Consumers frequenting Costco, Safeway, and further processing plants primarily purchase raw meat, not fully cooked. And, the majority turn up their noses at irradiated meat. If legislation allocates fines and jail time against these downstream entities, consumers remain at risk, and the SOURCE SLAUGHTER PLANTS continue to receive a free pass. Pretty nifty, eh?
    John Munsell

  • joannie

    Whoaaa, hold on there — one size does NOT fit all….unless we get ironclad exemptions for small producers — that’s anyone operating under the radar and anyone who is supplementing their income with a nice little fistful of under-the-table cash sales…..that’s most of the good, enterprising farmers market hucksters — unless they are held entirely blameless for anything and everyone they damage….well unless that is stipulated there must be no threat of exposure…..or accountability….or penalty — and certainly NOT INCARCERATION over a few overblown sicknesses or maybe a routine death or two caused by a little food sold with the best of intentions to keep the small producer rolling in the cabbage. Let’s not go off half-cocked here with all this penalty talk when you can shop your quaint local farmers market and be fully cocked, so to speak. Know your farmer, that’s the best way to deal with it….because then no one will ever complain of getting sick — ever….