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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Guilty is the Cheesemaker

AP reports that a New Jersey cheesemaker that made ricotta cheese from tainted milk has been fined $200,000 and put on four years of probation.

Lebanon Cheese Co. of Lebanon, N.J., and its president, Joseph G. Lotito, have been sentenced Tuesday after pleading guilty to a misdemeanor shipping charge.

Lotito will pay a $10,000 fine and also serve four years of probation.

Federal authorities say the company bought tainted milk destined for a landfill from Landis Trucking Inc. of Lancaster. The trucking company has also pleaded guilty.

Here is the law that he was prosecuted under – 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.

  • 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). This would explain the fines described in the AP story and comports with the original press release from the United States Attorney’s Office for the Eastern District of Pennsylvania when the company and its president were originally charged. http://www.justice.gov/usao/pae/News/2012/Mar/lebanoncheese,lotitorelease.htm. The impact of the Sentencing Guidelines should also be considered in detailing potential sanctions.

  • Sam

    Wait a minute; he’s paying $10,000 to settle a $200,000 fine? Just a cost of doing business at that point. Where’s the deterrent factor?