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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Under U.S. v. Park, why would you ever risk being a Food Company CEO?

United States v. Park 421 U.S. 658 (U.S. Sup. Ct. 1975) was decided just a few months after I graduated from High School, and long before I decided (as one food pundit coined), to become the “the Assassin in Armani” – at least to the food industry.

Park is an interesting (and seldom used) case where the Court ruled that Mr. Park, the CEO of Acme International (Acme Markets, Inc., was a national retail food chain with approximately 36,000 employees, 874 retail outlets, 12 general warehouses, and four special warehouses), had failed to comply with the Federal Food, Drugs, and Cosmetics Act (FDCA), to keep conditions within his warehouses sanitary. Rats and rat feces were found in two of the company’s warehouses (on more that one occasion) and the FDA had warned Acme to clean it up. There appears to have been no reported illnesses. At trial Acme pled guilty, but Park claimed he was not personally responsible for the violations. The jury disagreed and he was ultimately fined $50 per violation. The case eventually made its way to the Supreme Court.

In part, the focus of the Court’s opinion, was whether “the manager of a corporation, as well as the corporation itself, may be prosecuted under the FDCA for the introduction of misbranded and adulterated articles into interstate commerce.” The Court concluded the answer to be yes. In fact, the Court found that “[t]he Act imposes upon persons exercising authority and supervisory responsibility reposed in them by a business organization not only a positive duty to seek out and remedy violations but also, and primarily, a duty to implement measures that will insure that violations will not occur, … [I]n order to make food distributors the strictest censors of their merchandise, … the Act punishes “neglect where the law requires care, or inaction where it imposes a duty.”

The Court further looked to the purposes of the Act and noted that they “touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection.” It observed that the Act is of “a now familiar type” which “dispenses with the conventional requirement for criminal conduct – awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.”

Thus, the Court reaffirmed the proposition that “the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors.”

Today a misdemeanor conviction under the FDCA still, 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.

So, why would you ever risk being a Food Company CEO?

Quick answer – remind me again when was the last time a CEO was ever prosecuted for selling adulterated food?

  • Jeff Almer

    Bill—It seems by your article that the answer would be 1975 for the last time a CEO was prosecuted. I can’t even imagine how the case went that far in its scope and pursuit that many years ago. Did we have better management of federal investigations back then? Was it so blatant and egregious that someone made it something to focus on and pursue at that time?
    My family and other victims from the Peanut Corp case have been crying foul for months now and are patiently waiting for the feds to get it right and prosecute PCA CEO Stewart Parnell and any other guilty parties. Unfortunately in this country it seems to be media driven to go after celebrated cases. For example; the Michael Jackson doctor’s conviction and the Penn State sexual abuse scandals come to mind. Both cases were tragic and were, and are, worthy of prosecution. However, the 9 dead and hundreds sickened by Parnell have not seen one iota of justice.
    Since the government will not comment on an “ongoing investigation” (is it really ongoing?), victims can only ascertain that the feds have not made it a focus and have swept much of the investigation aside for many weeks. Either there is legitimate cause or there is not. It cannot be that damn complicated, so is it too much to ask for people to do their jobs? I am appealing to the people that are supposedly working on the Parnell case to either wrap it up or drop the case. From a personal standpoint I can speak to being sick and tired of waiting for the hammer to drop.
    The only satisfaction of the long delayed investigation continuing is that there is a greedy former CEO living in Lynchburg Virginia that has it all hanging over his head for these past months too. Not to mention the financial hit he takes from having his hot air spewing attorney William Gust employed. Hopefully Parnell has a conscience and is haunted by what he has done if nothing else.
    If Parnell is not eventually charged, let’s pray that alzheimer’s never takes his memory away. He never should forget what his greed has caused.

  • Stewert Pahrnel Peanutman

    Hahahahahahahahahahahahaha!!!!!! All the way to the bank!!!!!!!