As we enter 2016, adulterated food-related investigations are leading the headlines—and should be leading companies in the food and beverage industry to ask what they can do to prevent and prepare for a potential outbreak on their watch or in their supply chain.
From ice cream to eggs, and melons to Mexican food, a recent spate of significant adulterated food outbreaks and related criminal investigations and prosecutions have highlighted the need for companies at every step of the nation’s food supply to be increasingly vigilant in identifying and mitigating risks relating to food-borne illness.
The Federal Food, Drug & Cosmetic Act (“FD&C Act”) prohibits numerous acts, including introducing or receiving food in interstate commerce that is adulterated or misbranded. Depending on the nature of the violation, the FD&C Act provides for criminal prosecutions, including for misdemeanors (for first time, unintentional violations) and felonies (for repeat or knowing violations). Criminal FD&C Act enforcement has recently resulted in convictions and significant fines for corporations, and sentences of imprisonment for individual executives—including a 28-year sentence for a former CEO in a case where prosecutors were seeking life in prison.
We can expect this trend to continue, both because of the high profile these cases generate, and because of the unique role management has in responding. For individual executives, both the FDA’s Park Doctrine and the Responsible Corporate Officer Doctrine make it possible to prosecute certain executives even “without proof that the corporate official acted with intent or even negligence, and even if such corporate official did not have any actual knowledge of, or participation in, the specific offense.” Combined with DOJ’s renewed focus on high-level individual prosecutions pursuant to the recent guidance of the Yates Memo, revelation of an adulteration or misbranding issue could present the perfect storm for executives caught unprepared.
But there are steps companies in the food and beverage industry can take in advance of a crisis to mitigate the risk one will occur, and to maximize the chances of quickly remediating its effects if it does.