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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Chipotle Executives – Time to Find Really Good Criminal Lawyers

Screen Shot 2016-02-04 at 9.14.54 PMThis week Chipotle announced that it had been subpoenaed as part of a federal criminal investigation into food safety at its restaurants nationwide. The subpoena broadened the scope of a previously announced investigation, which focused only on a norovirus outbreak at a Chipotle restaurant in Simi Valley, California.

The investigation is being conducted by the U.S. attorney’s office for the Central District of California and the U.S. Food and Drug Administration’s Office of Criminal Investigations. Apparently, the investigation is being run by the same U.S. Attorney that prosecuted Odwalla nearly 20 years ago.

Chipotle said in a press release:

The new subpoena requires us to produce documents and information related to company-wide food safety matters dating back to January 1, 2013, and supersedes the subpoena served in December 2015 that was limited to a single Chipotle restaurant in Simi Valley, California.

So, what are the prosecutors looking for and what charges could Chipolte executives – not just the co-CEO’s be facing?

In 1938 Congress passed the Federal Food, Drug, and Cosmetic Act (FDCA) in reaction to growing public food 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, including food, 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. Chapter III of the Act addresses prohibited acts, subjecting violators to both civil and criminal liability.

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 years in jail and millions in fines or both for each violation. The key here is an intentional act.

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 $250,000, or both for each violation.

So what will the prosecutors of Chipotle be looking for? Will it likely be health and safety violations at the 1,900 Chipotle restaurants across the United States? I can only imagine how many violations you would find at 1,900 Chipotles of food being “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” over three years? My educated guess is that it would be quite a few. And, what about the Chipotle customer complaint files over three years?

Remember, with each finding – assuming no intentional conduct – even as a misdemeanor it is punishable by not more than one year or fined not more than $250,000, or both for each violation.

Like I said – find a good lawyer.