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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Prosecuting Those Who Poison

452c656ab8c71-71-1.jpgAfter once again spending time with victims of yet another outbreak of foodborne disease who are advocating for justice for themselves and family members, I thought again why prosecutors seem so reluctant to charge those who poison us with food. As I have said far too often, in nearly two decades of representing families impacted in foodborne outbreaks large and small, criminal prosecutions of those who poison us are rare. It is not because the laws do not exist.

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

The legal jargon aside, if you are a producer of food and knowingly or not sell adulterated food, you can (and should) face fines and jail time.

  • Justice Plus

    Mr. Marler,
    This is a disturbing post. Those jeans look like mine. The hands even look a little like mine. I can almost feel the cold, sharp, steel of the cuffs. I was on the way to bed with my wife but now I can’t sleep so I thought I might as well write to you.
    I am a farmer. A “producer of food” as you would say it. A small, local, direct-marketing, food producer to be exact. Producing safe, health-giving foods for our customers is the top priority of our family. We do need to make some money someday, but our customer’s safety and satisfaction comes before that.
    I have a lot of respect or you and your team’s expertise in food-borne illness cases. For that reason, I read Marler Blog, Food Poison Journal, and Food Safety News every day. I’m grateful for all that I have learned from you and other writers and I’m sure there is still a lot to learn.
    But this post disturbs me. Your stated position seems so unjust. It seems so harsh and so unmerciful especially coming from a man who otherwise appears compassionate and a champion of justice. I wonder if you have thought through the implications of what your position would mean to farmers like our family.
    We do everything in our power to grow and package our food safely. We abide by all the state and federal rules that apply to our operation which includes regular testing for the most common pathogens. Our farm and food producing, handling and packaging areas are fully inspected and licensed properly.
    We have a good relationship with our local state inspectors and even the occasional federal inspectors. An FDA inspector was on our farm just last week and we got along swell. He told us all was in order and gave us his best wishes. Like a lot of small farmers, we have some things we wish were different with the regulations and regulators, but we choose to work with them instead of against them. We treat them with respect and it is reciprocated. We like that.
    And yet there is even more to our food safety commitment than what any regulation would ever ask. My wife and I feed ourselves and our children from our farm every day. My friend and partner on the farm also feeds his family from the farm. We are like the king’s tasters. We put ourselves and our families on the front line. If there is anything wrong with the food that all of our testing and the regulators have failed to catch we will be the first to know. With my partner’s family and ours combined we have 16 people; mothers, dads, children and babies doing real-life-24/7 -testing of all of our foods. (Just try to make that a requirement in S 510! :)
    But here is my dilemma. I’m not God. I’m not in control of all things. We do our level best with all integrity, but microbes are everywhere… doing battle with them is tricky and not at all certain, so it is always possible a stray pathogen may find its way into our food. It happens to all foods as you should know.
    And yet you insist that in all of this there is no indemnity. (This post is not the first time I have heard you use this argument) No matter how hard we have tried, no matter how much we as a family go over and beyond what is required of us by regulation, no matter how much we care, no matter how innocent and law abiding we are, if we would have an outbreak, you want me arrested and thrown in jail as a common criminal on the charge of “poisoning” the food. I quote: “…if you are a producer of food and knowingly or not sell adulterated food, you can (and should) face fines and jail time.” I further assume that you also would also see me as a sitting duck for a crushing law suit to boot in order to serve “justice.”
    Please tell me this is not so Mr. Marler. I think better of you than that. It is true that the FDCA of 1938 gives this provision, but tell me that your sense of justice rises above the cold hard law.
    Tell me that you have enough ethics and are man enough to acknowledge that when a “producer of food” exerts certain extraordinary, high integrity efforts in food safety that there does come a point when he becomes innocent of wrong doing and therefore receives indemnity from both prosecution and law suit even if someone would fall ill from consuming the food from his farm.
    And before you retreat behind “the law is the law” and “there is no precedent for this type of indemnity”, please remember that history makes heroes of pioneer leaders with enough vision, ethics, integrity and moral courage to rise above the unjust laws of their time.
    Think about it.
    All the best of food and blessings,
    Justice Plus

  • Jeff Almer

    To Justice Plus: Thanks for your thought provoking and informative comments. You are exactly the kind of food producer who we need more of out there.
    I am sure most are running fantastic facilities but unfortunately the CEO of Peanut Corporation did not. Stewart Parnell totally disregarded all moral and ethical components of operating a food production plant. As a result he killed my mother who had survived brain cancer and had an immune system that was compromised.
    Parnell also killed an additional eight others and sickened a known 700+. Some that will have lifelong repercussions. If you continue to operate your farm in the manner you describe, I don’t see Bill Marler, myself, or anyone else wanting to come after you for prison or fines.
    Due to the lack of justice, Stewart Parnell is helping to produce food for Citation Snacks in Greensboro North Carolina as we speak.
    Thanks for what you do Justice Plus and keep up the good work.

  • “The legal jargon aside, if you are a producer of food and knowingly or not sell adulterated food, you can (and should) face fines and jail time.”
    Bill, do you really mean that if all of my food safety plans at OPDC are perfectly in balance and all of my controls are correct and some person with a weak immune system gets sick that I should go to jail even if I did not know that their was a problem.
    This is a statement that appears very one sided…very unfair….and unjust.
    Perhaps all food producers should stop producing food and let the people starve for a bit so that the people can then understand that there are risks to all food….and even more risk with lack of personal responsibility is added, when a person becomes immune depressed because of his ignorance or lack of appreciation of health. Yes….each person has a personal responsibility for his or her own health and immune system. Doctors can not treat immune depression or make you healthy. There is no such thing as a shot or pill of health. 99% of doctors do not have a clue about how to create a strong immune system or create health in a human body. Doctors are trained to treat the signs and symptoms of disease after you become sick. They do very little to prevent disease or illness.
    Please apologize to the good food producers of America. It would appear that “you would choose starvation for all… before a slight persistent risk to some”…. when it comes to your world of perfect food safety….it does not exist, because every immune system is different.
    Pasteurized milk killed three in 2007 ( Massechusits Whittier Farms )….according to the religion of PMO, CAFO, NCIMS, CDC and the FDA and now even you. Pasteurization is supposed to be a Guarantee of Food Safety.
    This is a lie on its face and terribly missleading to any conscious American.
    Please apologize to all of the good ass busting American Farmers that you have attempted to sham.
    Mark McAfee
    Founder OPDC
    Fresno CA

  • Mark, I make no apologizes for making people accountable for poisoning their customers. Of course I am focusing my attention on the truly bad players – like PCA – not small farmers who, like you since 2006, are paying attention to good farming and manufacturing practices.

  • Doc Mudd

    Our esteemed ‘small producers’ seem (predictably) to be over-reacting to a legitimate call for them to be responsible and accountable for the safety of food products they sell.
    They were pretty self-assured and even a little cocky until faced with a compliance strategy they can’t just BS their way out of.
    Suddenly you have their studious attention, Mr. Marler. Now the food safety dialogue may be getting somewhere!

  • Marco

    Mark McAfee: It would seem clear to most thoughtful people that Marler is referring to the big PCA/salmonella case, where it has been alleged that a food producer willfully put food known to be contaminated in the marketplace, and not the “ass-busting American Farmers” who are merely trying to make a buck and don’t know much about microbiology. Nevertheless, I am astounded that you would blame a small child’s “weak immune system” or “ignorance or lack of appreciation of health” if they become ill drinking contaminated milk (pasteurized or unpasteurized) and take no responsibility for whatever lapse caused the contamination. Have you no shame? Your passion for peddling your over-priced product apparently has erased your conscience. Or maybe lack of conscience is just another of the many benefits to be derived from drinking raw milk. When you can’t sleep at night, a warm glass of rationalization is likely more comforting than thinking about a kid hooked up to dialysis.

  • Thank you Bill,


  • Gabrielle Meunier

    To Justice Plus and Mark McAfee: I am one of the many victims pushing Bill to help us achieve Justice in the PCA case. I understand the words of the 1938 FDCA to be black and white and perhaps this is why there are so few criminal prosecutions under this law. I believe a very strong word left out in this law and is perhaps how Bill was referring to it, is NEGLIGENCE. Clearly Mr. Justice Plus, your family is not acting negligently in producing your product. I would think that if your farm were to cause an Outbreak that you would go to the ends of the earth to fix the problem and work hard to have it never repeated. But hopefully it would never get to that because you are practicing HACCP and are with knowledge of safe food production and pathogen prevention. But I must emphasize here “with knowledge”. You could be selling your products the best way that you know how, but perhaps you are lacking the “knowledge” to do it safe and right. Hence the reason for the wording of the law. The intent would be to make sure that anyone sellling a food product is doing so with full knowledge of safe production. Do you document your production? I would hope so. If it were me, I would make sure that not only I was doing the things you mention in your post, but that perhaps I ‘d invest a few hundred dollars to have a consultant look at my production methods and make sure I was covering all my safe food bases. I would document that I did this and I would document that I followed the advice given. A little bit of prevention goes a long way. The law is not going to punish someone who was with knowledge, followed scientific protocol, and did not act negligently. But just to be sure, this is why we have all been pushing the new Food Safety Modernization Act, because in this new law it requires all food producers to follow some type of HACCP which only makes logical sense. Unfortunately the new law exempts food producers who sell under $500,000. I still hope they understand that it is to their benefit that they follow the same safe food production guidelines.

  • Justice Plus

    Jeff Almer
    Thanks for your comments. I understand that this subject lies close to your heart with what your family has suffered during the PCA scandal. Our thoughts and prayers are with you. We can only imagine the pain and anger you have felt. Certainly we all agree that the PCA situation is an example of “total disregard for all moral and ethical components of operating a food production plant.”
    You comment about us: “You are exactly the kind of food producer who we need more of out there. …Thanks for what you do…. keep up the good work” Our family values your affirmation Jeff. It means a lot.
    But this brings us back to the quandary. How can we, who are being as ethically responsible as is humanly possible, be reassured that we will not be thrown under the train of victimization and “justice” if we would, in spite of our extraordinary caution, have a person fall ill from one of our foods? We are not naïve. It could happen in-spite of a HACCAP plan…in-spite of S.510.
    You state that you do not see yourself or Marler coming after someone like us. That speaks volumes about your sense of ethics and true justice. I applaud you for taking the highroad. Your understanding of true justice and fairness will do more to encourage ethical, moral food production than anything else. We need more of your kind out there! :)
    I trust that Marler would agree with your ethics, but I do find his silence somewhat telling . His often stated position on this issue remains “If you are a producer of food and KNOWINGLY OR NOT sell adulterated food, you can (and should) face fines and jail time. (emphasis mine)
    Where is the justice in that?
    Justice Plus

  • Justice to whom? Victims or people and businesses who poisoned them?
    In two decades of practice I have seen only a handful – less than 5 – individuals or corporations that have been prosecuted under this 1930’s law – all under the knowing standard. I think the chances of prosecution happening – even PCA – is very, very low. But, we can always keep trying.
    Prosecutors have discretion in bringing charges. It is unlikely (and history bears that out) that a company that tries to do everything right and something happens will never be prosecuted.

  • Justice Plus

    “It is unlikely (and history bears that out) that a company that tries to do everything right and something happens will never be prosecuted”
    Mr Marler
    English grammer says: A double negative makes a positive. Did you perhaps mean to say, It is unlikely (and history bears that out) that a company that tries to do everything right and something happens will EVER be prosecuted?
    Sorry to quibble over words, but you know, it’s the lawyer thing. We need to get it straight.
    Justice Plus

  • I certainly would not bet on seeing ANY prosecutions under any circumstances. But, could it happen? It may. Clearly, I am most interested in seeing fellows like Parnell and the real “bad actors” punished. However, proving intent is tough at times. That is why the law has a lesser standard that allows for prosecution if you run your plant badly (I can give you 2 decades of examples) but do not know for positive that the product was contaminated – like Parnell knew of the positive tests.
    A producer who does everything to prevent illnesses is very, very, unlikely to be prosecuted. They are also unlikely to sicken anyone in the first place.

  • Justice Plus

    Doc Mudd: I’m not sure what you eat, but whatever it is seems to be eating at you. What do you mean Marler suddenly has my studious attention. Our family has been operating not only within but above all the food safety laws and regulations and producing safe foods without incident for years. And it is not because of fear of Marler. We do it because we care. We know our customers. They are our friends.
    A call to be accountable, responsible and produce safe food?…faced with a compliance strategy that we cannot BS our way out of? Are you perhaps referring to S.510?
    S. 510 doesn’t scare us the least. We are so far beyond S.510 that we have to squint to see them through our dust.
    Let’s be constructive instead of destructive. Then yes, perhaps the food safety dialog will be able to get somewhere if we can establish a reward system for the good fellows to compliment the all-ready-in-place punitive system for the bad actors. The combination of the two is really the only way to move food safety to the next level.
    Any ideas?

  • Justice – what would you suggest as a way of a carrot for the good guys? Other than me suing the bad guys (and presumably getting stopped at the pearly gates), they have no risk of a stick.

  • James Dean Foley; Owner/CEO Global Consulting Services Inc.

    Dear Mr. Marler,
    Excellent work for the plaintiffs. Great information on the history of the criminal section of that statute. I was previously employed as a corporate Project Manager at ConAgra Foods’ World Headquarters here in Omaha, Nebraska. After having experienced such a ruthless criminal disregard for the health and well being of the public, I now work specifically for the Plaintiffs and their attorneys.
    There is no doubt that somewhere during the manufacturing process employees,(under pressure from superiors), knowingly signed off on adulterated food simply to help their bottom line.
    Most of these checks and balances are found in the EWP–Engineering Workflow Process. During our investigation into ConAgra’s Slim Jim Explosion in Garner N.C., we found many parts of the process were simply ignored and skipped. That explosion killed 4 people and poisoned another 100.
    Please feel free to contact me with any questions you may have regarding my services: GCSINC2@gmail.com or by phone at 402-706-6733.
    Plaintiffs may also call with questions.


    James Dean Foley
    Global Consulting Services Inc.
    Omaha, Nebraska.

  • Justice Plus

    Marler: What would I suggest as a carrot for the good guys? Indemnity from threat of law suit and prosecution. This is basically what I said in my first comment on this post. When a food producer exerts extraordinary, high integrity efforts in food safety, there must come a point when he is judged innocent of wrong doing and therefore receives indemnity from both prosecution and law suit even if someone would fall ill from consuming the food from his operation.
    Without an achievable innocence and indemnity earned through superior safety conduct, a food producer has little incentive to do more than the bare minimum since he knows that if an outbreak were to occur, he would be judged guilty no-matter-what and sued.
    I’m not talking about this ignorantly. I fully understand how this flies in the face of 50 years of strict liability rulings. For the uninitiated, “strict” or sometimes called “absolute liability’ is a legal term that mean that you can be sued even without proof of carelessness or fault.
    And, I better put this in here before Doc Mudd gets excited, when I say good guys; I’m not referring to small producers. Any size food producer could be a good guy as long as they truthfully were able to demonstrate that they have exerted an extraordinary, high integrity effort toward the safety of the food they produce. The details of this would need to be fleshed out but I think you get the idea.
    Bill, I know that your burning life mission is to make America’s food safer for American families. Suing the daylights out of the bad actors in the last 17 or 18 years has been your modus operandi, but I’m sure you understand fear of punishment is really only one piece in motivational chess. The time has come to move some other pieces.

  • Interesting idea. What about the person who is injured? They are left empty handed? NZ has a no fault system, but they have universal health care and the victims get some compensation. However, NZ has a tighter inspection system than the U.S. and a system of fines and jail time. All interesting trade-offs.
    I can tell you I have never sued “a food producer [who] exert[ed] extraordinary, high integrity efforts in food safety.” The reality is that outbreaks simply do not just happen. There are always a series of events that were not properly controlled that caused the food to be contaminated.
    As for incentives – I hope the incentives are to produce a high quality product, not sicken anyone and to make money. In 20 years I have never met a business man or woman who would “do [no] more than the bare minimum since he knows that if an outbreak were to occur.”